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FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554
April 16, 2002
Vital Living Products, Inc. Vital Living
Products, Inc.
dba American Water Service dba American
Water Service
5001 Smith Farm Road 2300 Sardis Road
North, Suite V
Matthews, North Carolina 28104 Charlotte, North
Carolina 28227
Attention: Donald R. Podrebarac, President/CEO Attention:
Henry Mummaw
C. Wilbur Peters, Chairman of the Board
Registered Agent
Larry Pratt, Vice Pres., Admn and Dir.
RE: EB-02-TC-048
Dear Correspondents:
This is an official CITATION issued pursuant to section
503(b)(5) of the Communications Act of 1934, as amended (the Act),
for violations of the Act and the Federal Communications
Commission's rules that govern telephone solicitation.1
It has come to our attention that your company has delivered
a prerecorded unsolicited advertisement to a residential telephone
line (see attachment). The Act and the Commission's Rules
prohibit transmission of unsolicited advertisements through
prerecorded messages to residential telephone lines except under
the very limited circumstances described in the Rules.2 The term
``unsolicited advertisement'' is defined in the Communications
Act 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.''3 The attached
information provided to the Commission indicates that your company
delivered such an unsolicited advertisement, through a prerecorded
message, to a residential telephone subscriber who does not have
an established business relationship with your company and had not
expressly invited or authorized the call. That action violates
section 64.1200(a)(2) of the Commission's rules.
Separately, it appears that your company may have violated
other Commission rules governing prerecorded messages and
telephone solicitation. Under section 64.1200(e)(2)(iv), any
telephone solicitation - whether live or prerecorded - must
provide the called party with the name of the individual caller,
the name of the person or entity on whose behalf the call is being
made, and an address or telephone number (which may not be for an
autodialer or prerecorded message player) at which the person or
entity may be contacted.4 According to the attached information
received by the Commission, it appears that your telephone
solicitation did not contain all the required information.
Please be advised that subsequent violations of the
Communications Act or of the Commission's rules of the type
described herein may result in the imposition of monetary
forfeitures not to exceed $11,000 for each such violation or each
day of a continuing violation. 5
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 Atlanta Office at 3575 Koger
Boulevard, Room 320, Duluth, Georgia 30096-4958. You can contact
the Atlanta Office by telephone at
(770) 935-3370. 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
If you choose to submit a written statement, your written
statement should specify what actions have been taken to correct
the violation(s) outlined above. You should also include a copy
of your company's written do-not-call policy as required by
section 64.1200(e)(2)(i) of the Commission's rules. Please
reference EB-02-TC-048 when corresponding with the Commission.
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
Act 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 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 47 U.S.C § 227; 47 C.F.R. § 64.1200.
2 The Commission's rules make it unlawful to ``initiate any
telephone call using an artificial or prerecorded voice to deliver
a message without the prior express consent of the called party
unless the call is initiated for emergency purposes or ... is not
made for a commercial purpose, is made for a commercial purpose
but does not include the transmission of any unsolicited
advertisement, [is made] to any person with whom the caller has an
established business relationship at the time the call is made, or
[is made by or on behalf of] a tax-exempt nonprofit organization.
47 C.F.R. § 64.1200(a)(2), (c); see also 47 U.S.C. § 227(b)(1)(B)
(prohibiting all prerecorded calls to residential lines ``unless
the call is initiated for emergency purposes or is exempted by
rule or order by the Commission....'').
3 47 U.S.C. 227(a)(4); 47 C.F.R. 64.1200(f)(5).
4 47 C.F.R. § 64.1200(e)(2)(iv). In addition, the Act and the
Commission's rules impose separate identification requirements for
prerecorded messages. Under section 227(d)(3)(A) of the Act, all
prerecorded messages ``shall, at the beginning of the message,
state clearly the identity of the business, individual, or other
entity initiating the call, and ... shall, during or after the
message, state clearly the telephone number or address of such
business, other entity, or individual.'' 47 U.S.C. § 227(d)(3)(A)
(emphasis added); see also 47 C.F.R. § 65.1200(d)(e)(2)(iv)
(imposing identification requirements for prerecorded messages
delivered by automatic telephone dialing systems).
5 See 47 C.F.R. § 1.80(b)(3).