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FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554
                                                            MAY 
31, 2001






Kevin Katz
President
Fax.com, Inc.
120 Columbia Street
Aliso Viejo, California  92656                                 

      RE:  EB-01-TC-028

Dear Mr. Katz: 

     This is an official CITATION, issued pursuant to section 
503(b)(5) of the Communications Act of 1934, as amended 
(Communications Act), for possible violations of the Telephone 
Consumer Protection Act of 19911 (TCPA) and the Federal 
Communications Commission's rules that implement that Act.2

     It has come to our attention that your company recently 
transmitted to a telephone facsimile machine at the Federal 
Communications Commission an unsolicited advertisement for 
products, goods, or services offered by Advanced Cellular 
Communications, Inc. (see attachment).  Pursuant to the TCPA and 
the Commission's Rules, it is unlawful to use a ``telephone 
facsimile machine, computer, or other device to send an 
unsolicited advertisement to a telephone facsimile machine.''3  
The term ``unsolicited advertisement'' is defined in the TCPA and 
the Commission's rules as ``any material advertising the 
commercial availability or quality of any property, goods, or 
services which is transmitted to any person without that person's 
prior express invitation or permission.''4  The Commission has 
specified that an established business relationship between a fax 
sender and recipient constitutes prior express invitation or 
permission to send a facsimile advertisement.5  Mere distribution 
or publication of a fax number, however, does not establish 
consent to receive advertisements by fax.6 
       
     Although entities that merely transmit facsimile messages on 
behalf of others are not liable for compliance with the 
prohibition on faxing unsolicited advertisements,7 the exemption 
from liability does not exist when a fax transmitter has ``'a 
high degree of involvement or actual notice of an illegal use and 
[has] fail[ed] to take steps to prevent such transmissions.'''8  
Accordingly, fax transmitters do not enjoy an absolute exemption 
from liability under the TCPA and the Commission's Rules. 

     This citation serves as notice that the unsolicited 
facsimile advertisements sent by Advanced Cellular 
Communications, Inc. and transmitted by your company violate the 
TCPA and the Commission's Rules.  The Commission may assess to 
your company monetary forfeitures not to exceed $11,000 for each 
subsequent violation if (1) your company has been highly involved 
on behalf of the sender of any unsolicited facsimile 
advertisements, or (2) your company continues to transmit 
facsimile advertisements for Advanced Cellular Communications, 
Inc. without taking steps to ensure that the sender has obtained 
permission from recipients to fax the advertisements.

     Pursuant to section 503(b)(5) of the Communications Act, you 
may request a personal interview at the Commission's Field Office 
nearest to your place of business.  The nearest office appears to 
be the Los Angeles Office at Cerritos Corporate Tower, 18000 
Studebaker Road, Room 660, Cerritos, California  90703-3130.  You 
may contact the Los Angeles field office by telephone at 562-865-
0598.  You must schedule this interview to take place within 21 
days of the date of this citation.  Alternatively, you may submit 
a written statement to the following address within 21 days of 
the date of this citation:

               Kurt A. Schroeder
               Deputy Chief
               Telecommunications Consumers Division
                Enforcement Bureau
               Federal Communications Commission
               445 - 12th Street, S.W.
               Washington, D.C.  20554 

Please reference EB-01-TC-028 when corresponding with the 
Commission.

     If you choose to submit a written statement, you should 
discuss in detail your company's involvement in faxing 
advertisements on behalf of Advanced Cellular Communications, 
Inc., including any specific arrangements under which you 
transmit their advertisements.  Please provide copies of any 
contracts or agreements that memorialize the terms and conditions 
under which you fax for Advanced Cellular Communications, Inc.  
You should also answer the following questions: 

     1.   Has your company had any control over or involvement in 
       determining the content of advertisements transmitted by 
       facsimile on behalf of Advanced Cellular Communications, 
       Inc. or any other entities on whose behalf you transmit 
       advertisements by facsimile?  Please describe such 
       control or involvement in detail.  

     2.   Who provided, compiled, or generated the distribution 
       list(s) of telephone facsimile numbers that your company 
       has used to transmit advertisements on behalf of Advanced 
       Cellular Communications, Inc. or any other entities on 
       whose behalf you transmit advertisements by facsimile?  

     3.   If your company has been involved in any way in 
       providing, compiling, generating, or editing the 
       distribution list(s) of telephone facsimile numbers that 
       your company has used to transmit advertisements on 
       behalf of Advanced Cellular Communications, Inc. or any 
       other entities on whose behalf you transmit 
       advertisements by facsimile, describe in detail the 
       process by which your company produces or participates in 
       the generation of such list(s).  Does your company employ 
       or compensate any individuals or entities outside the 
       company, including any tax-exempt nonprofit 
       organizations, for any service, activity, assistance, or 
       facilities used in connection with your company's 
       providing, compiling, generating, or editing of such 
       list(s)?  Please describe such arrangements in detail. 

     4.   If your company has been involved in any way in 
       providing, compiling, generating, or editing the 
       distribution list(s) of telephone facsimile numbers that 
       your company has used to transmit advertisements on 
       behalf of Advanced Cellular Communications, Inc. or any 
       other entities on whose behalf you transmit 
       advertisements by facsimile, what steps has your company 
       taken to ensure that the telephone facsimile numbers 
       belong to individuals or entities who have agreed, by 
       explicit consent or by virtue of an established business 
       relationship with the advertiser, to receive the 
       advertisement?  Please describe in detail the manner in 
       which you record consumers' consent or the existence of 
       an established business relationship and provide copies 
       of any written record-keeping policies with respect to 
       maintaining evidence of such consent or business 
       relationship. 

     5.   Does your company advertise its fax transmittal 
       services, and, if so, by what means?  Please provide 
       copies of all print, audio, and video materials that have 
       been used within the past year to advertise your 
       company's fax transmittal services.  For each 
       advertisement, list the media in which the advertisement 
       appeared and the date(s) of such appearance(s).

     Under the Privacy Act of 1974, 5 U.S.C.  552(a)(e)(3), we 
are informing you that the Commission's staff will use all 
relevant material information before it to determine what, if 
any, enforcement action is required to ensure your compliance 
with the TCPA and the Commission's rules.  This will include any 
information that you disclose in your interview or written 
statement.  Please be advised that if you choose not to respond 
to this citation and a Notice of Forfeiture is issued, your 
unresponsiveness will be considered in our assessment of a 
forfeiture amount.

     You should also be aware that the knowing and willful making 
of any false statement, or the concealment of any material fact, 
in reply to this citation is punishable by fine or imprisonment 
under 18 U.S.C.  1001.

     Thank you in advance for your anticipated cooperation.

                              Sincerely, 



                              Kurt A. Schroeder
                              Deputy Chief
                              Telecommunications Consumers 
                         Division
                              Enforcement Bureau
                              Federal Communications Commission

Enclosures

_________________________

1    Pub.L. No. 102-243, 105 Stat. 2394-2402 (1991) (codified at 
47 U.S.C.  227)  
2
     47 C.F.R.  64.1200.
 
3    47 U.S.C.  227(b)(1)(C); 47 C.F.R.  64.1200(a)(3).

4    47 U.S.C.  227(a)(4); 47 C.F.R.  64.1200(f)(5).
 
5    Rules and Regulations Implementing the Telephone Consumer 
Protection Act of 1991, Report and Order, 7 FCC Rcd 8752, 8779 n. 
87 (1992) (TCPA Report and Order); Rules and Regulations 
Implementing the Telephone Consumer Protection Act of 1991, 
Memorandum Opinion and Order, 10 FCC Rcd 12391, 12408 (1995) 
(TCPA Memorandum Opinion and Order).
6
     TCPA Memorandum Opinion and Order, 10 FCC Rcd 12391, 12408. 

7    Id. at 12407. 

8    TCPA Report and Order, 7 FCC Rcd 8752, 8780 (1992) (quoting 
Use of Common Carriers, 2 FCC Rcd 2819, 2820 (1987).)