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FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554
January 22, 2004
VIA CERTIFIED MAIL
RETURN RECEIPT REQUESTED
AND FACSIMILE
William T. Ficka, III William T. Ficka,
III
The Ficka Companies, Inc. The Ficka Companies,
Inc.
d.b.a. Ficka Co., Inc. d.b.a. Ficka Co.,
Inc.
d.b.a. Nicole, Thomas & Associates d.b.a. Nicole,
Thomas & Associates
d.b.a. USA Debt Recovery d.b.a. USA Debt Recovery
d.b.a. IDCC Worldwide, Inc. d.b.a. IDCC
Worldwide, Inc.
d.b.a. International Debt Collectors d.b.a.
International Debt Collectors
Consortium, Inc. Consortium, Inc.
7301 Topanga Canyon Boulevard, Suite 205 7301 Topanga
Canyon Boulevard, Suite 204
Canoga Park, California 91303 Canoga Park,
California 91303
William T. Ficka, III William T. Ficka,
III
The Ficka Companies, Inc. IDCC Worldwide, Inc.
d.b.a. Ficka Co., Inc. d.b.a. International
Debt Collectors
d.b.a. Nicole, Thomas & Associates Consortium, Inc.
d.b.a. USA Debt Recovery 352 Government Street
d.b.a. IDCC Worldwide, Inc. Mobile, Alabama
36602-2316
d.b.a. International Debt Collectors
Consortium, Inc. William T. Ficka, III
5238 Beckford Avenue 203 South Drive
Tarzana, California 91356 Fairhope, Alabama
36532
William T. Ficka, III
955 Downtowner Boulevard, Suite 117
Mobile, Alabama 36609-5421
RE: EB-04-TC-011
Dear Mr. Ficka:
This is an official CITATION and LETTER OF INQUIRY issued
pursuant to sections 4(i), 403, and 503(b)(5) of the
Communications Act, as amended (the Act), 47 U.S.C. §§ 154(i),
403, 503(b)(5), for violations of the Act and the Federal
Communications Commission's rules that govern telephone
solicitations and unsolicited advertisements.1
It has come to our attention that you 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. The purpose of this
correspondence is (1) to inform you of your potential liability
for monetary forfeitures if you continue to send unsolicited fax
advertisements, and (2) to gather information regarding your
business's corporate structure, business relationships, and
involvement in advertising practices that fall under section 227
of the Act and section 64.1200 of the Commission's rules.
As set forth below, we direct you to respond to this
Citation and Letter of Inquiry by providing the information and
documents specified below no later than 30 days after the date of
this correspondence.
I. CITATION FOR APPARENT VIOLATIONS OF THE TCPA
Materials attached to this Citation and Letter of Inquiry
indicate that you apparently sent unsolicited advertisements to
telephone facsimile machines. Under section 227(b)(1)(C) of the
Act and section 64.1200(a)(3) of the Commission's rules it is
``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
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. 6
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 either the
Los Angeles Office at Cerritos Corporate Towers, 18000 Studebaker
Road, Room 660, Cerritos, California 90703-2692 or the Atlanta
Office at 3575 Koger Boulevard, Room 320, Duluth, Georgia 30096-
4958. You can contact the Los Angeles Office or Atlanta Office
by telephone at (562) 860-7474 or (770) 935-3370, respectively.
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 the undersigned, as
specified below.
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).
II. INQUIRY REGARDING CORPORATE STRUCTURE, BUSINESS
RELATIONSHIPS, AND ADVERTISING PRACTICES
Instructions
If the Companies request that any information or Documents,
as defined herein, responsive to this letter be treated in a
confidential manner, they shall submit, along with all responsive
information and Documents, as defined herein, a statement in
accordance with Section 0.459 of the Commission's rules. 47
C.F.R. § 0.459. Requests for confidential treatment must comply
with the requirements of Section 0.459, including the standards
of specificity mandated by Section 0.459(b). Accordingly,
``blanket'' requests for confidentiality of a large set of
documents are unacceptable. Pursuant with Section 0.459(c), the
Bureau will not consider requests that do not comply with the
requirements of Section 0.459.
If the Companies withhold any information or Documents under
claim of privilege, they shall submit, together with any claim of
privilege, a schedule of the items withheld that states,
individually as to each such item, the numbered inquiry to which
each item responds and the type, title, specific subject matter,
and date of the item; the names, addresses, positions, and
organizations of all authors and recipients of the item; and the
specific ground(s) for claiming that the item is privileged.
Each requested Document not subject to a claim of privilege
shall be submitted in its entirety, even if only a portion of
that Document is responsive to an inquiry made herein. This
means that the Document shall not be edited, cut, or expunged,
and shall include all appendices, tables, or other attachments,
and all other Documents referred to in the Document or
attachments. All written materials necessary to understand any
Document responsive to these inquiries must also be submitted.
If a Document responsive to any inquiry made herein existed
but is no longer available, or if the Companies are unable for
any reason to produce a Document responsive to any inquiry,
identify each such Document by author, recipient, date, title,
and specific subject matter, and explain fully why the Document
is no longer available or why the Companies are otherwise unable
to produce it.
With respect only to Documents responsive to the specific
inquiries made herein and any other Documents relevant to those
inquiries , the Companies are directed to retain the originals of
those Documents for twenty-four (24) months from the date of this
letter unless (1) the Companies are directed or informed by the
Enforcement Bureau in writing to retain such Documents for some
other period of time or (2) the Enforcement Bureau and/or the
Commission
releases any item on the subject of this investigation,
including, but not limited to, a Notice of Apparent Liability for
Forfeiture or an order disposing of the issues in the
investigation, in which case, the Companies must retain all such
Documents until the matter has been finally concluded by payment
of any monetary penalty, satisfaction of all conditions,
expiration of all possible appeals, conclusion of any collection
action brought by the United States Department of Justice or
execution and implementation of a final settlement with the
Commission or the Enforcement Bureau.
The specific inquiries made herein are continuing in nature.
The Companies are required to produce in the future any and all
Documents and information that are responsive to the inquiries
made herein but not initially produced at the time, date and
place specified herein. In this regard, the Companies must
supplement its responses (a) if the Companies learn that, in some
material respect, the Documents and information initially
disclosed were incomplete or incorrect or (b) if additional
responsive Documents or information are acquired by or become
known to the Companies after the initial production. The
requirement to update the record will continue for twenty-four
(24) months from the date of this letter unless (1) the Companies
are directed or informed by the Enforcement Bureau in writing
that the Companies' obligation to update the record will continue
for some other period of time or (2) the Enforcement Bureau
and/or the Commission releases an item on the subject of this
investigation, including, but not limited to, a Notice of
Apparent Liability for Forfeiture or an order disposing of the
issues in the investigation, in which case the obligation to
update the record will continue until the release of such item.
For each Document or statement submitted in response to the
inquiries below, indicate, by number, to which inquiry it is
responsive and identify the person(s) from whose files the
Document was retrieved. If any Document is not dated, state the
date on which it was prepared. If any Document does not identify
its author(s) or recipient(s), state, if known, the name(s) of
the author(s) or recipient(s). The Companies must identify with
reasonable specificity all Documents provided in response to
these inquiries.
Unless otherwise indicated, the period of time covered by
these inquiries begins January 1, 1999 and ends with the date of
the Companies' response.
Definitions
For purposes of this Letter of Inquiry, the following
definitions apply:
"Any" shall be construed to include the word "all," and the
word "all" shall be construed to include the word "any."
Additionally, the word "or" shall be construed to include the
word "and," and the word "and" shall be construed to include the
word "or." The word "each" shall be construed to include the
word "every," and the word "every" shall be construed to include
the word "each."
"Document" shall mean the complete original (or in lieu
thereof, exact copies of the original) and any non-identical copy
(whether different from the original because of notations on the
copy or otherwise), regardless of origin or location, of any
taped, recorded, transcribed, written, typed, printed, filmed,
punched, computer-stored, or graphic matter of every type and
description, however and by whomever prepared, produced,
disseminated, or made, including but not limited to any
advertisement, book, pamphlet, periodical, contract,
correspondence, letter, facsimile, e-mail, file, invoice,
memorandum, note, telegram, report, record, handwritten note,
working paper, routing slip, chart, graph, photograph, paper,
index, map, tabulation, manual, guide, outline, script, abstract,
history, calendar, diary, agenda, minute, marketing plan,
research paper, preliminary drafts, or versions of all of the
above, and computer material (print-outs, cards, magnetic or
electronic tapes, disks and such codes or instructions as will
transform such computer materials into easily understandable
form).
``Companies'' shall include each company as noted on page 1
of this letter, and any predecessor-in-interest,
successor?in?interest, affiliate, parent company, any wholly or
partially owned subsidiary, or other affiliated company(s) or
business(es), and all owners, including but not limited to,
partners or principals, and all directors, officers, employees,
or agents, including consultants and any other persons working
for or on behalf of the foregoing at any time during the period
covered by this letter.
C. Documents and Information to be Provided
1. Provide the following information:
a. The name, address, and telephone number for each
corporate officer, owner, and/or partner of the Companies;
b. The address and telephone number of each of the
Companies' corporate headquarters and any other address and
telephone number at which the Companies conduct business;
c. Any name other than that noted on page 1 of this letter
under which the Companies conduct business;
Provide articles of incorporation and any other documents that
record or relate to the Companies' registration to conduct
business within any state in the United States.
2. Describe in detail any business relationship between, or
business activities or transactions that involve, either
William T. Ficka, III or the Companies.
3. Describe in detail any business relationship between, or
business activities or transactions that involve, either
William T. Ficka, III or the Companies and the following
entities7 or
individuals, including any fictitious entities or individuals
operating ordinary business under the following names:
a. Debt Collectors International, Inc.
b. Mancini, O'Malley & Cole;
c. Debt Recovery International, Inc.;
d. Conlon, Cahill & Murphy;
e. Thomas, Thomas, Alexis & Lynn;
f. Campbell, Campbell, Drexler & Gates;
g. Ashton, Ashton, O'Riley & Schwartz;
h. Karla Brown
i. Melissa Midkiff;
j. Jim W. Zeigler;
k. Rudolph Stearnes, III;
l. Kyle Holder;
m. William ``Bill'' Thomas;
n. William G. Jones, III;
o. Theodore Hust;
p. Robert Nieto;
Provide any relevant documents that relate to such
relationships, activities, or transactions.
4. Describe any information regarding fax advertising,
including offers to sell fax numbers, generated by or on
behalf of William T. Ficka, III or the Companies.
5. Describe any information regarding fax advertising either
received by William T. Ficka, III or the Companies from, or
provided by the William T. Ficka, III or Companies to, the
entities or individuals listed above in 2(a)-(p). Provide any
relevant documents.
We encourage you to furnish any additional documents or provide a
statement of any other facts that you believe may be relevant to
this inquiry.
Finally, you are directed to provide an affidavit or
declaration pursuant to 28 U.S.C.
§ 1746 and 47 C.F.R. § 1.16, signed by an authorized officer of
your company, which states that all of the documents and
information requested by this letter which are in your
possession, custody, control, or knowledge have been produced,
and which certifies that the information produced is true and
correct. 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 and Letter of Inquiry is punishable by
fine or imprisonment under 18 U.S.C. § 1001.
Your response to this inquiry and any written response to
the citation should be submitted no later than 30 days from 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-011 when corresponding with the Commission.
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 in
response to the Citation and Letter of Inquiry, 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. You
may contact Mary Romano at (202) 418-0975 or Mr. Schroeder at
(202) 418-0966 if you have any questions about this inquiry.
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. 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 See 47 C.F.R. § 1.80(b)(3).
7 Each entity shall encompass, to the extent they are known to
you, any affiliate, d/b/a, parent companies, any wholly or
partially owned subsidiary, or other affiliated companies or
businesses, and all directors, officers, employees, or agents,
including consultants and any other persons working for or on
behalf of the foregoing at any time during the period covered by
this letter.