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FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554
May 9, 2002
Xpedite Systems, Inc.1
100 Tormee Drive
Asbury Park, New Jersey 07712-7502
Attention: Robert Mainor, President
Vincent Devita, Executive Vice President/COO
Ian Bedford, Vice President, Finance/CFO
Patrick Jones, Vice President/Secretary
Xpedite Systems, Inc.1
PTEK Holdings, Inc.2
3399 Peachtree Road NE, #600
Atlanta, Georgia 30326-1120
Attention: Boland Jones, CEO
Roy Cammarano
Theodore Schrafft
Max Slifer
Jeffrey Allred
Richard Buyens
Will Franklin
Patrick Jones
William Thurber
Randy Salisbury
RE: EB-02-TC-071
Dear Correspondents:
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 19913 (TCPA) and the Federal
Communications Commission's rules that implement that Act.4
It has come to our attention that your company recently
transmitted to telephone facsimile machines unsolicited
advertisements for products, goods, or services offered by Wall
Street Watch a.k.a. Pics L Wallstreet L (see attachments).5
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.''6
The TCPA and the Commission's rules also require any person
or entity who sends a message via a telephone facsimile machine
to clearly mark ``in a margin at the top or bottom of each
transmitted page of the message or on the first page of the
transmission, the date and time it is sent and an identification
of the business, other entity, or individual sending the message
and the telephone number of the sending machine or of such
business, other entity, or individual.''7
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.''8 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.9 Mere distribution
or publication of a fax number, however, does not establish
consent to receive advertisements by fax.10
Although entities that merely transmit facsimile messages on
behalf of others are not liable for compliance with the
prohibition on faxing unsolicited advertisements,11 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.'''12
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 Wall Street Watch a.k.a. Pics L
Wallstreet L 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 Wall Street Watch a.k.a Pics L
Wallstreet L 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 either the New York Office at 201 Varick Street, Room 1151,
New York, New York 10014 or the Atlanta Office at Koger Center-
Gwinnett -- Room 320, 3575 Koger Boulevard, Duluth, Georgia
30096. You can contact the New York Office or the Atlanta Office
by telephone at, (888) 225-5322 or (770) 935-3370, respectively.
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-02-TC-071 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 Wall Street Watch a.k.a. Pics L
Wallstreet L, 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 Wall Street Watch. 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 Wall Street Watch a.k.a. Pics L
Wallstreet L 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 Wall
Street Watch a.k.a. Pics L Wallstreet L 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 Wall Street Watch a.k.a. Pics L Wallstreet L 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 Wall Street Watch a.k.a. Pics L Wallstreet L 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 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 The Telecommunications Consumers Division has obtained
information that Xpedite Systems, Inc. has approximately 46
multiple branches and divisions throughout the United States and
at various international locations.
2 The Telecommunications Consumers Division has obtained
information that Xpedite Systems, Inc. is a subsidiary of PTEK
Holdings, Inc.
3 Pub.L. No. 102-243, 105 Stat. 2394-2402 (1991) (codified at
47 U.S.C. § 227).
4
47 C.F.R. § 64.1200.
5 In addition to the advertisement(s) referenced by and attached
to this citation, the complaining party may also have included
with the complaint one or more facsimile advertisements
transmitted by other senders. This citation concerns only the
facsimile advertisement(s) referenced by and attached to the
citation, and your response only needs to address such
advertisement(s).
6 47 U.S.C. § 227(b)(1)(C); 47 C.F.R. § 64.1200(a)(3).
7 47 U.S.C. § 227(d)(1)(B); 47 C.F.R. § 68-318(d).
8 47 U.S.C. § 227(a)(4); 47 C.F.R. § 64.1200(f)(5).
9 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).
10
TCPA Memorandum Opinion and Order, 10 FCC Rcd 12391, 12408.
11 Id. at 12407.
12 TCPA Report and Order, 7 FCC Rcd 8752, 8780 (1992) (quoting
Use of Common Carriers, 2 FCC Rcd 2819, 2820 (1987).)