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FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554
September 9, 2004
VIA CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Health Plan Consultants
10333 Northwest Fwy.
Houston, TX 77092-8428
This is an official CITATION, issued pursuant to section
503(b)(5) of the Communications Act of 1934, as amended (the
Act), 47 U.S.C. § 503(b)(5), for violations of the Act and the
Federal Communications Commission's rules that govern telephone
solicitations and unsolicited advertisements.1 As explained
below, future violations of the Act or Commission's rules in this
regard may subject your company to monetary forfeitures.
It has come to our attention that your company apparently
sent one or more unsolicited advertisements to telephone
facsimile machines in violation of section 227(b)(1)(C) of the
Act and section 64.1200(a)(3) of the Commission's rules. Under
these provisions, ``it shall be unlawful for any person within
the United States, or any person outside the United States if the
recipient is within the United States . . . to use a telephone
facsimile machine, computer, or other device to send an
unsolicited advertisement to a telephone facsimile machine.'' 2
The term ``unsolicited advertisement'' is defined in the 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 Under Commission
rules and orders currently in effect, the Commission considers an
established business relationship between a fax sender and
recipient to constitute prior express invitation or permission to
send a facsimile advertisement.4 Mere distribution or
publication of a fax number, however, does not establish consent
to receive advertisements by fax.5
In addition to the violation identified above, it appears
that your company also has violated the provisions of the Act and
the Commission's rules that 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,
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
Houston Office. Please call Al McCloud at (202) 418-2499 if you
wish to schedule a personal interview. 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
Federal Communications Commission
445-12th Street, S.W., Room 4-C222
Washington, D.C. 20554
Reference EB-04-TC-131 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 email@example.com or call the Consumer &
Governmental Affairs Bureau:
For sign language interpreters, CART, and other
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
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.
Kurt A. Schroeder
Deputy Chief, Telecommunications
Federal Communications Commission
1 47 U.S.C. § 227; 47 C.F.R. § 64.1200. A copy of these
provisions is enclosed for your convenience. Section 227 was
added to the Communications Act by the Telephone Consumer
Protection Act of 1991 and is most commonly known as the TCPA.
The TCPA and the Commission's parallel rules restrict a variety
of practices that are associated with telephone solicitation and
use of the telephone network to deliver unsolicited
advertisements, including fax advertising.
2 47 U.S.C. § 227(b)(1)(C); 47 C.F.R. § 64.1200(a)(3). Both the
TCPA and the Commission's rules define ``telephone facsimile
machine'' as ``equipment which has the capacity to transcribe
text or images, or both, from paper into an electronic signal and
to transmit that signal over a regular telephone line, or to
transcribe text or images (or both) from an electronic signal
received over a regular telephone line onto paper.'' 47 U.S.C. §
227(a)(2); 47 C.F.R. § 64.1200(f)(8). The Commission has stated
that ``[t]he TCPA's definition of `telephone facsimile machine'
broadly applies to any equipment that has the capacity to send or
receive text or images.'' Thus, ``faxes sent to personal
computers equipped with, or attached to, modems and to
computerized fax servers are subject to the TCPA's prohibition on
unsolicited faxes. . . [although] the prohibition does not extend
to facsimile messages sent as email over the Internet.'' Rules
and Regulations Implementing the Telephone Consumer Protection
Act of 1991, Report and Order, 18 FCC Rcd 14014, 14131-32 (2003)
(2003 TCPA Report and Order).
3 47 U.S.C. § 227(a)(4); 47 C.F.R. § 64.1200(f)(10).
4 Rules and Regulations Implementing the Telephone Consumer
Protection Act of 1991, Memorandum Opinion and Order, 10 FCC Rcd
12391, 12405 (1995) (1995 TCPA Reconsideration Order). In June
2003, the Commission amended its rules to specify that prior
express invitation or permission to receive a facsimile
advertisement must be recorded in a ``signed written statement
that includes the facsimile number to which any advertisements
may be sent and clearly indicates the recipient's consent to
receive such facsimile advertisements from the sender.'' 2003
TCPA Report and Order, 18 FCC Rcd at 14124-28 (adopting new
section 64.1200(a)(3)(i). This new provision, which supercedes
the established business relationship exception, is scheduled to
take effect January 1, 2005. Rules and Regulations Implementing
the Telephone Consumer Protection Act of 1991, Order on
Reconsideration, 18 FCC Rcd 16972 (2003); Rules and Regulations
Implementing the Telephone Consumer Protection Act of 1991,
Order, FCC 03-230 (rel. Oct. 3, 2003). The Commission currently
is considering petitions that seek to retain the established
business relationship exception or require methods other than a
signed written statement to demonstrate prior express consent to
receive fax advertising.
51995 Reconsideration Order, 10 FCC Rcd at 12408-09; see also
2003 TCPA Report and Order, 18 FCC Rcd at 14128 (concluding that
publication of a fax number in a trade publication or directory
does not demonstrate consent to receive fax advertising).
6 47 U.S.C. § 227(d)(1)(B); 47 C.F.R. § 68.318(d).
7 See 47 C.F.R. § 1.80(b)(3).