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FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554
December 22, 2003
VIA CERTIFIED MAIL
RETURN RECEIPT REQUESTED
AND FACSIMILE
Dynasty Mortgage
2633 E. Indian School Road
Suite 370
Phoenix, AZ 85016
RE: EB-03-TC-100
Dear Sir or Madam:
This is an official CITATION, issued pursuant to section
503(b)(5) of the Communications Act of 1934, as amended (the
Communications Act), 47 U.S.C. § 503(b)(5), for violations of the
Federal Communications Commission's rules that govern telephone
solicitations and unsolicited advertisements.1 As explained
below, future violations of the Commission's rules in this regard
may subject your company to monetary forfeitures.
By letter dated November 18, 2003, the Telecommunications
Consumers Division of the Commission's Enforcement Bureau
notified you of consumer complaints regarding telemarketing calls
that your company, or an entity acting on behalf of your company,
made to telephone lines that are contained in the National Do-
Not-Call Registry, and provided you an opportunity to submit
information to demonstrate the lawfulness of those calls.2 You
failed to respond to the letter of November 18, 2003 as directed
in the letter. Accordingly, we issue this citation.
Section 64.1200(c)(2) of the Commission's rules generally
prohibits the delivery of telephone solicitations to residential
telephone numbers that are contained in the National Do-Not-Call
registry except in certain limited situations. Under the
Communications 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.''3 Calls made by or on behalf of tax-exempt
nonprofit groups are not considered to be telephone
solicitations. Similarly, calls that are made to a person who
either has provided prior express invitation or permission to
call4 or has an established business relationship5 with the
caller are not considered to be telephone solicitations.
Finally, the rules permit telephone solicitations to a consumer
whose number is listed on the National Do-Not-Call Registry if
that consumer has a personal relationship with the individual
making the calls.6
Accordingly, under the Commission's rules it is unlawful to
deliver a telephone solicitation to a residential telephone line
unless (1) the call is made by or on behalf of a tax-exempt
nonprofit group; (2) the call is made by a person who has a
personal relationship with the called party; (3) the called party
has provided signed, written consent for the call to be made; or
(4) the called party has made a purchase from, or had a
transaction with, the caller within the 18 months immediately
preceding the call or has made an inquiry or application
regarding the caller's products or services within the three
months immediately preceding the call, and the called party has
not specifically asked the caller to stop all telemarketing
calls.
Entities making telephone solicitations must honor do-not-
call registrations no later than three months after a number is
placed on the National Do-Not-Call Registry, and for a period of
no less than five years. To accomplish this, section
64.1200(c)(2)(i)(D) requires entities making telephone
solicitations to use a version of the National Do-Not-Call
Registry obtained no more than three months before any telephone
solicitation is made, and to document this process. An entity
that does not claim one of the exemptions set forth above is not
liable for calling a telephone number on the National Do-Not-Call
Registry only if it is able to demonstrate that it has fully
complied with the Commission's standards governing use of the
National Do-Not-Call Registry as set out in section
64.1200(c)(2)(i)(A)-(E) of the rules, and that the particular
telephone solicitation call was the result of error. National
Do-Not-Call Registry records indicate that your company has
failed to obtain an updated version of the Do-Not-Call Registry
to ensure that you do not make prohibited solicitations to any
residential telephone subscriber whose number has been added to
the registry within the previous three months. Your company,
therefore, does not quality for this exemption from liability.
If, after receipt of this citation, you violate the
Communications Act or the Commission's rules in any manner
described herein, the Commission may impose monetary forfeitures
not to exceed $11,000 for each such violation or each day of a
continuing violation. 7
You may respond to this citation within 30 days from the
date of this letter either through (1) a personal interview at
the Commission's Field Office nearest to your place of business,
or (2) a written statement. Your response should specify the
actions that you are taking to ensure that you do not violate the
Commission's rules governing telephone solicitation and
unsolicited advertisements, as described above.
The nearest Commission field office appears to be the San Diego
Office at 4542 Ruffner Street, Room 370, San Diego, California
92111-2216, which you may contact by telephone at (858) 496-5111.
You should schedule any interview to take place within 30 days of
the date of this letter. You should send any written statement
within 30 days of the date of this letter to:
Kurt A. Schroeder
Deputy Chief
Telecommunications Consumers
Division
Enforcement Bureau
Federal Communications Commission
445-12th Street, S.W.
Rm. 3-C366
Washington, D.C. 20554
Reference EB-03-TC-100 when corresponding with the Commission.
Reasonable accommodations for people with disabilities are
available upon request. Include a description of the
accommodation you will need including as much detail as you can.
Also include a way we can contact you if we need more
information. Please allow at least 5 days advance notice; last
minute requests will be accepted, but may be impossible to fill.
Send an e-mail to fcc504@fcc.gov or call the Consumer &
Governmental Affairs Bureau:
For sign language interpreters, CART, and other
reasonable accommodations:
202-418-0530 (voice), 202-418-0432 (tty);
For accessible format materials (braille, large print,
electronic files, and audio
format): 202-418-0531 (voice), 202-418-7365 (tty).
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, including information
that you disclose in your interview or written statement, to
determine what, if any, enforcement action is required to ensure
your compliance with the Communications Act and the Commission's
rules.
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 C.F.R. § 64.1200. A copy of these rules is enclosed for
your convenience.
2 We have attached 259 complaints on which this citation is
based. The complaints come from Arizona and California.
3 47 U.S.C. § 227(a)(3); 47 C.F.R. § 64.1200(f)(9).
4 Prior express invitation or permission to call a number
contained on the National Do-Not-Call Registry must be evidenced
by a signed, written agreement between a consumer and seller.
The agreement must include both the consumer's consent to be
called by the particular seller and the telephone number to which
such calls may be placed. 47 C.F.R. § 64.1200(c)(2)(ii).
5 An ``established business relationship'' means ``a prior or
existing relationship formed by a voluntary two-way communication
between a person or entity and a residential subscriber with or
without an exchange of consideration, on the basis of the
subscriber's purchase or transaction with the entity within the
eighteen (18) months immediately preceding the date of the
telephone call or on the basis of the subscriber's inquiry or
application regarding products or services offered by the entity
within the three months immediately preceding the date of the
call, which relationship has not been previously terminated by
either party.'' 47 C.F.R. § 64.1200(f)(3). The established
business relationship exception does not apply when a telephone
subscriber has made a company-specific do-not-call request. A
company-specific do-not-call request terminates an established
business relationship for telemarketing purposes even if the
requester continues to do business with the company. 47 C.F.R.
§ 64.1200(f)(3)(i); see also Rules and Regulations Implementing
the Telephone Consumer Protection Act of 1991, Report and Order,
7 FCC Rcd 8752, 8766 n.47, 8770 n.63 (1992); see also H.R. Rep.
102-317, 1st Sess., 102nd Cong. at 15 (1991); Charvat v. Dispatch
Consumer Services, Inc., 95 Ohio St. 3d 505, 769 N.E.2d 829
(2002).
6 47 C.F.R. § 64.1200(c)(2)(iii). A ``personal relationship''
exists if the recipient of the call is a ``family member, friend,
or acquaintance of the telemarketer making the call.'' 47 C.F.R.
§ 64.1200(f)(11).
7 See 47 C.F.R. § 1.80(b)(3).