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FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554
May 20, 2003
Mr. Thomas Powell
President/Registered Agent
Energy Windows Plus, Inc.
a.k.a. FLA. Patio Rooms, Inc.
4660 West Walton Boulevard
Waterford, Michigan 48329
RE: EB-03-TC-043
Dear Mr. Powell:
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
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.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 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.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 Detroit Office at 24897 Hathaway Street,
Farmington Hills, Michigan 48335-1552, which you can contact by
telephone at (248) 471-5661. 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-03-TC-043 when corresponding with the Commission.
If you request a meeting, 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 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. §
64.1200(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).