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FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554
February 27, 2004
VIA CERTIFIED MAIL
RETURN RECEIPT REQUESTED
AND FACSIMILE
Powerplus Mortgage, Inc.
Powerplus Mortgage, Inc.
a.k.a. Powerplus Mortgage a.k.a. Powerplus
Mortgage
13921 Park Center Road, Suite 160/120 47382
Westwood Place, Suite 101
Herndon, Virginia 20171-3236
Sterling, Virginia 20165-2411
Attention: Andrew H. Guerin, President/CEO Attention: Andrew
H. Guerin, President/CEO
Charles A. Brady, VP Operations
Charles A. Brady, VP Operations
Jason C. Eiss, VP Sales/CFO
Jason C. Eiss, VP Sales/CFO
Business Filings Incorporated National Registered
Agents, Inc.
3949 Fighting Creek Drive. 3761
Venture Drive
Powhatan, Virginia 23139
Duluth, Georgia 30096
National Registered Agents, Inc. National
Registered Agents, Inc.
3533 Fairview Industrial Drive, SE 604 Locust
Street, Suite 222
Salem, Oregon 97302-1155 Des
Monies, Iowa 50309
National Registered Agents, Inc. of MD National
Registered Agents, Inc.
#9E-11E Chase Street
1900 Church Street, Suite 400
Baltimore, Maryland 21202
Nashville, Tennessee 37203
National Registered Agents, Inc. Business Filings
Incorporated
320 N. Meridian Street
4701 Cox Road, Suite 301
Indianapolis, Indiana 46204 Glen
Allen, Virginia 23060-6802
NRAI Services, Inc.
526 East Park Avenue
Tallahassee, Florida 32301
RE: EB-04-TC-027
Dear Correspondents: 1
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.2 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 has delivered
one or more prerecorded messages to a residential telephone line
or lines in violation of the section 227(b)(1)(B) of the Act and
section 64.1200(a)(2) of the Commission's rules. Under the
rules, it is unlawful to
Initiate any telephone call to any residential line using an
artificial or prerecorded voice to deliver a message without
the prior express consent of the called party, unless the
call,
(i) Is made for emergency purposes,3
(ii) Is not made for a commercial purpose,
(iii) Is made for a commercial purpose but does not include
or introduce an unsolicited advertisement4 or constitute a
telephone solicitation,5
(iv) Is made to any person with whom the caller has an
established business relationship6 at the time the call is
made, or
(v) Is made by or on behalf of a tax-exempt nonprofit
organization.
Accordingly, the rules generally prohibit delivery of prerecorded
advertisements and solicitations to residential telephone lines
unless the call is made (1) by or on behalf of a tax-exempt
nonprofit organization, (2) with the prior express consent of the
called party, (3) to a person who has an established business
relationship with the caller.
The attached information indicates that your company
delivered an unsolicited advertisement or telephone solicitation,
through a prerecorded message, to one or more residential
telephone subscribers who either (1) had not expressly invited or
authorized the call(s) or (2) did not have an established
business relationship with your company (a transaction within 18
months prior to the call(s), or an inquiry or application within
3 months prior to the call(s)). As explained above, this action
violates section 64.1200(a)(2) of the Commission's rules.
Separately, it appears that your company also has violated
other Commission rules that govern all prerecorded messages.
Under section 64.1200(b), prerecorded messages must, at the
beginning of the message, state clearly the identity of the
business (the name under which the business is registered to
conduct business with the State Corporation Commission or
comparable regulatory authority), individual, or other entity
that is responsible for initiating the call. In addition, the
telephone number7 or address of such business, or individual, or
other entity must be provided either during or after the
prerecorded message. According to the attached information
received by the Commission, it appears that your telephone
solicitation(s) did not contain all the required information.
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. 8
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 office appears to be either the FCC
headquarters location at 445-12th Street, S.W., Washington, D.C.
20554 or the Columbia Office at 9200 Farm House Lane, Columbia,
Maryland 21046. Please contact Senetta Lancaster at (202) 418-
7320 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
Deputy Chief
Telecommunications Consumers
Division
Enforcement Bureau
Federal Communications Commission
445-12th Street, S.W.
Rm. 3-C366
Washington, D.C. 20554
Reference EB-04-TC-027 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 The Telecommunications Consumers Division has obtained
information that the additional addressees listed above are
registered agents of Powerplus Mortgage, Inc.
2 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 prerecorded messages to residential
telephone lines.
3 The term ``emergency purposes'' means calls made necessary in
any situation affecting the health and safety of consumers.'' 47
C.F.R. § 64.1200(f)(2).
4 The term ``unsolicited advertisement'' means ``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.''
47 U.S.C.§ 227(a)(4); 47 C.F.R. § 64.1200(f)(10).
5 The term ``telephone solicitation'' means
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, but such term does not include a
call or message:
(i) To any person with that person's prior express
invitation or permission;
(ii) To any person with whom the caller has an established
business relationship; or
(iii) By or on behalf of a tax-exempt nonprofit
organization.
47 U.S.C. § 227(a)(3); 47 C.F.R.§ 64.1200(f)(9).
6 The term ``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.
(i) The subscriber's seller-specific do-not-call request, as
set forth in paragraph (d)(3) of this section, terminates an
established business relationship for purposes of
telemarketing and telephone solicitation even if the
subscriber continues to do business with the seller.
(ii) The subscriber's established business relationship with
a particular business entity does not extend to affiliated
entities unless the subscriber would reasonably expect them
to be included given the nature and type of goods or
services offered by the affiliate and the identity of the
affiliate.
47 C.F.R. § 64.1200(f)(3)
7 Any telephone number so provided may not be for (1) an
autodialer or prerecorded message player that placed the call,
(2) a 900 number, or (3) any other number for which charges
exceed local or long distance transmission charges. In addition,
any such telephone number provided in connection with a
prerecorded sales messages to a residential telephone subscriber
must permit any individual to make a do-not-call request during
regular business hours for the duration of the telemarketing
campaign.
8 See 47 C.F.R. § 1.80(b)(3).