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FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554
July 18, 2002
Ad Resources, Inc. Ad Resources, Inc.
d/b/a/ Dining and Shopping Spree d/b/a/ Dining and
Shopping Spree
d/b/a/ Conroe Dining and Shopping Spree d/b/a/ Conroe Dining
and Shopping Spree
17047 El Camino Real, Suite 215 17045 El Camino
Real, Suite 105
Houston, Texas 77059 Houston, Texas 77058
Attention: Phillip Read Attention: Phillip Read
Ad Resources, Inc. Ad Resources, Inc.
d/b/a/ Dining and Shopping Spree d/b/a/ Dining and
Shopping Spree
d/b/a/ Conroe Dining and Shopping Spree d/b/a/ Conroe Dining
and Shopping Spree
4130 SW HK Dodgen Loop 2222 Rio Grande Street,
#D110
Temple, Texas 76504 Austin, Texas
78705-5135
Attention: Phillip Read Attention: Phillip Read
Specialized Marketing Consultants1
17047 El Camino Real, Suite 215
Houston, Texas 77058
Attention: Chuck McCulley
RE: EB-02-TC-132
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.2
It has come to our attention that your company, or an entity
acting on behalf of your company, delivered a telephone
solicitation to a residential telephone line despite a previous
do-not-call request by a member of the household. Section
64.1200(e) of the Commission's rules requires entities that make
telephone solicitations to residential telephone subscribers to
follow certain procedures to ensure that the subscribers are able
to stop such solicitation calls. Specifically, entities that
advertise through telephone solicitation must (1) develop written
policies for maintaining a do-not-call list and make such written
policies available upon demand; (2) inform and train their
personnel engaged in any aspect of telephone solicitation about
the existence and use of the do-not-call list; (3) place
consumers who request not to receive telephone solicitations on
the do-not-call list; and (4) honor each do-not-call request for
ten years from the time the request is made.3 In addition, the
Commission has found that it is unlawful to call a residential
telephone line to deliver a telephone solicitation if any member
of the household has made a do-not-call request.4
Under the Act and the Commission's rules, a telephone
solicitation is ``the initiation of a telephone call or message
for the purpose of encouraging the purchase or rental of, or
investment in, property, goods, or services, which is transmitted
to any person;'' calls that are made either by tax-exempt
nonprofit organizations or to any person who has provided prior
express invitation or permission to call or has an established
business relationship with the caller are not considered
telephone solicitations.5
The attached information provided to the Commission
indicates that your company failed to honor a do-not-call request
that was made by or on behalf of a residential telephone
subscriber who does not have an established business relationship
with your company and did not expressly invite or authorize the
call. That action violates section 64.1200(e)(2)(vi) of the
Commission's rules.
It has also come to our attention that your company has
delivered one or more prerecorded unsolicited advertisements to
residential telephone lines (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.6 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.''7 The attached information provided to the
Commission indicates that your company delivered such unsolicited
advertisements, through prerecorded messages, to one or more
residential telephone subscribers who do not have an established
business relationship with your company and had not expressly
invited or authorized the call(s). Those actions violate 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.8 According to the attached
information received by the Commission, it appears that your
telephone solicitation did not contain all the required
information.
Subsequent violations of the Communications Act, and the
Commission's rules and orders 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.9
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 Dallas Office at 9330 LBJ Freeway, Room 1170,
Dallas, Texas 75243, which you can contact by telephone at (214)
575-6361. You must schedule the interview to take place within
21 days of the date of this citation. You should be prepared to
discuss when your company recorded the do-not-call request(s)
referenced in the attached consumer correspondence and why your
company failed to honor such request(s). You also will be
expected to discuss your procedures for training your company's
telephone solicitors as to do-not-call responsibilities, and to
specify what steps your company has taken to ensure future
compliance with the Commission's do-not-call rules. Finally, you
must supply 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. Alternatively, you may submit a written statement
addressing the specified topics, and attaching your company's
written do-not-call policy, 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
You should reference EB-02-TC-132 when corresponding with the
Commission.
As required by the Privacy Act of 1974, 5 U.S.C. §
552(a)(e)(3), you are hereby notified that the Commission's staff
will use all relevant material information to determine what, if
any, enforcement action is required to ensure your compliance
with the Commission's rules. This will include any information
that you disclose in your interview or written statement. 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.
Finally, you should 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 Mr. Chuck McCulley of Specialized Marketing
Consultants has acknowledged in writing this company's legal
affiliation with Ad Resources, Inc.
2 47 U.S.C. § 227; 47 C.F.R. § 64.1200.
3 47 C.F.R. § 64.1200(e).
4 Consumer.Net v. AT&T, Order, 15 FCC Rcd 281, 298 (1999).
5 47 U.S.C. § 227(a)(3); 47 C.F.R. § 64.1200(f)(3).
6 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....'').
7 47 U.S.C. 227(a)(4); 47 C.F.R. 64.1200(f)(5).
8 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. §
64.1200(d)(e)(2)(iv) (imposing identification requirements for
prerecorded messages delivered by automatic telephone dialing
systems).
9 See 47 C.F.R. § 1.80(b)(3).