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FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554
October 26, 2005
VIA CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Fax Marketing Corporation
Attn: Ron J. Ressler, President
1000 Island Blvd, Ste 1211
N. Miami Beach, Florida 33160
Fax Marketing Corporation
Attn: Ron J. Ressler, President
P.O. Box 630039
N. Miami Beach, Florida 33163
RE: EB-05-TC-063
Dear Mr. Ressler:
This is an official CITATION and LETTER OF INQUIRY1 related
to violations of the Communications Act of 1934, as amended, 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 you and your company to monetary
forfeitures.
It has come to our attention that your company, under your
direction, is are involved in transmitting to telephone facsimile
machines unsolicited advertisements for property, goods, or
services offered by another entity (see attachments).3 As
explained in detail below, section 227(b)(1)(C) of the
Communications Act and section 64.1200(a)(3) of the Commission's
rules generally prohibit the delivery of unsolicited
advertisements to telephone facsimile machines.
We direct you and your company 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 VIOLATIONS OF 47 U.S.C. § 227(b)(1)(C)
AND 47 C.F.R. § 64.1200(a)(3)
Section 227(b)(1)(C) of the Communications Act makes it
``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.'' 4 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.''5 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.6 Mere distribution or publication of a fax
number, however, does not establish consent to receive
advertisements by fax.7
Although entities that merely transmit or `broadcast''
facsimile messages on behalf of others are not generally liable
for compliance with the prohibition on faxing unsolicited
advertisements, the exemption from liability does not exist when
a facsimile broadcaster8 has ``a high degree of involvement in,
or actual notice of, the unlawful activity and fails to take
steps to prevent such facsimile transmissions.''9 Supplying the
telephone facsimile numbers to which messages are sent or
influencing the content of the fax message, among other things,
evidence a high degree of involvement. Therefore, in certain
circumstances, fax broadcasters may be held liable for
unsolicited advertisements that they transmit to telephone
facsimile machines on behalf of other entities. You and your
company may be subject to monetary forfeitures if, among other
things, you and your company: (1) are highly involved in sending
unsolicited facsimile advertisements on behalf of any party, as
evidenced by such actions as supplying the telephone facsimile
numbers to which you transmit unsolicited advertisements or
influencing the content of fax messages; or (2) continue to
transmit facsimile advertisements for the entity or entities for
whom the Company faxed the advertisements that are attached to
this correspondence without taking steps to ensure that either
that entity or your company has an established business
relationship with each recipient or has otherwise obtained each
recipient's permission to fax advertisements.
Finally, section 63.318(d) of the Commission's rules
requires that a fax broadcaster with a high degree of involvement
in the messages it transmits include on each message the name
under which it is registered to conduct business with the
relevant State Corporation Commission or comparable regulatory
authority. The attached materials indicate that you and your
company have failed to include this information on the faxes at
issue. This omission violates the Commission's rules and may
subject you and your company to monetary forfeitures if, in fact,
you and your company are highly involved in your customers'
sending of facsimile messages, as evidenced by the factors
outlined above.
If, after receipt of this citation, you and your company
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. 10
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 Miami
Office in [Miami, Florida; however, 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 include any written statement
with your answers to the inquiries set forth in section II of
this correspondence.
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 FAX BROADCASTING ACTIVITIES
We direct you and your Company, pursuant to sections 4(i),
4(j), and 403 of the Act, 47 U.S.C. §§ 154(i), 154(j), 403, to
provide the information and Documents, where relevant, specified
herein within 30 calendar days from the date of this letter.
Instructions
Request for Confidential Treatment. If Fax Marketing
Corporation (``Fax Marketing'') requests that any information or
documents responsive to this letter be treated in a confidential
manner, it shall submit, along with all responsive information
and documents, 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 to section 0.459(c), the Bureau will not consider
requests that do not comply with the requirements of section
0.459.
Claims of Privilege. If Fax Marketing withholds any
information or documents under claim of privilege, it 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.
Method of Producing Documents. Each requested document, as
defined herein, shall be submitted in its entirety, even if only
a portion of that document is responsive to an inquiry made
herein, unless the document is a recording or transcript, in
which case it should be provided only for the period of time of
the broadcast specified in the pertinent inquiry 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.
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). Fax Marketing must identify with
reasonable specificity all documents provided in response to
these inquiries.
Documents No Longer Available. If a document responsive to
any inquiry made herein existed but is no longer available, or if
Fax Marketing is 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 Fax
Marketing is otherwise unable to produce it.
Retention of Original Documents. With respect only to
documents responsive to the specific inquiries made herein and
any other documents relevant to those inquiries, Fax Marketing is
directed to retain the originals of those documents for twelve
(12) months from the date of this letter unless (a) Fax Marketing
is directed or informed by the Enforcement Bureau in writing to
retain such documents for some shorter or longer period of time
or (b) the Enforcement Bureau 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, Fax
Marketing 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.
Continuing Nature of Inquiries. The specific inquiries made
herein are continuing in nature. Fax Marketing is 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, Fax Marketing must supplement its responses (a) if Fax
Marketing learns 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 Fax Marketing after the initial
production. The requirement to update the record will continue
for twelve (12) months from the date of this letter unless (a)
Fax Marketing is directed or informed by the Enforcement Bureau
in writing that Fax Marketing's obligation to update the record
will continue for some shorter or longer period of time or (b)
the Enforcement Bureau 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.
Unless otherwise indicated, the period of time covered by
these inquiries is October 1, 2004 to the date of your response.
Definitions
For purposes of this letter, 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).
Fax Marketing Corporation shall mean Fax Marketing
Corporation and any predecessor-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.]
Inquiries: Documents and Information to be Provided
1. Discuss in detail the Company's involvement in
transmitting to telephone facsimile machines the
advertisements that are attached to this correspondence and
identify, including name(s), business telephone
number(s),and address(es) of, the entity or entities for
which the Company transmitted such advertisements. Discuss
any other services that the Company provides to the entity
or entities whose property, goods, or services are promoted
in the attached advertisements. Provide all relevant
documents, including any contracts, agreements, or any other
materials that address or memorialize the terms and
conditions under which the Company transmits telephone
facsimile messages for, or provides any other services to,
the entity or entities whose property, goods, or services
are promoted in the attached advertisements.
2. Has the Company disclosed to the entity or entities
whose property, goods, or services are promoted in the
attached advertisements, or any other entities for which it
transmits telephone facsimile messages, that sending
unsolicited advertisements to telephone facsimile machines
is unlawful? Provide all relevant documents.
3. Has the Company had any control over or involvement in
influencing the content of the attached advertisements or
any other advertisements that the Company transmits by
facsimile? Does the Company offer any type of editing or
graphic design services for advertisements that it transmits
by facsimile? Describe all such control, involvement, or
services in detail. Provide all relevant documents.
4. Who provided, compiled, or generated the distribution
list(s) of telephone facsimile numbers used to transmit the
attached advertisements or any other advertisements that the
Company transmits by facsimile? Provide all relevant
documents.
5. If the Company has been involved in any way in
providing, compiling, generating, or editing the
distribution list(s) of telephone facsimile numbers used to
transmit the attached advertisements or any other
advertisements that the Company transmits by facsimile,
describe in detail the process by which the Company obtains,
produces, or participates in the generation of such list(s).
Does the Company employ or compensate any individuals or
entities outside the Company for any service, activity,
assistance, or facilities used in connection with providing,
compiling, generating, or editing of such list(s)? Describe
such arrangements in detail. Provide all relevant
documents.
6. If the Company has been involved in any way in
providing, compiling, generating, or editing the
distribution list(s) of telephone facsimile numbers used to
transmit the attached advertisements or any other
advertisements that the Company transmits by facsimile, what
steps has the Company taken to ensure that the telephone
facsimile numbers belong to individuals or entities who have
agreed, by explicit consent or by virtue of an established
business relationship, to receive the advertisement(s)?
Describe in detail the manner in which the Company records
consumers' consent or the existence of an established
business relationship. Provide all relevant documents.
7. Does the Company advertise facsimile transmittal
services or any other services associated with facsimile
advertisements, and, if so, by what means? Provide copies
of all print, audio, and video materials that have been used
within the past year to promote such services. For each
advertisement, list the media in which the advertisement
appeared and the date(s) of such appearance(s).
Provide the names and addresses of all principals of the
company and a full description of each person's position and
interest in the company.
Provide the number of customers served by the company on a
monthly basis for the previous twelve months.
We direct Fax Marketing to support its responses with an
affidavit or declaration under penalty of perjury, signed and
dated by an authorized officer of Fax Marketing with personal
knowledge of the representations provided in Fax Marketing's
response, verifying the truth and accuracy of the information
therein and that all of the Documents and information requested
by this letter which are in the Fax Marketing's possession,
custody, control or knowledge have been produced. If multiple
Fax Marketing employees contribute to the response, in addition
to such general affidavit or declaration of the authorized
officer of Fax Marketing noted above, provide separate affidavits
or declarations of each such individual that identify clearly to
which responses the affiant or declarant is attesting. All such
declarations provided should comply with section 1.16 of the
Commission's rules, 47 C.F.R. § 1.16, and be substantially in the
form set forth therein. To knowingly and willfully make any
false statement or conceal any material fact in reply to this
inquiry is punishable by fine or imprisonment. See 18 U.S.C. §
1001; see also 47 C.F.R. § 1.17. Failure to respond
appropriately to a Bureau LOI constitutes a violation of the
Communications Act and our rules. See SBC Communications, Inc.,
Order of Forfeiture, 17 FCC Rcd 7589 (2002); Globcom Inc., Notice
of Apparent Liability for Forfeiture and Order, 18 FCC Rcd 19893,
n. 36 (2003) ); World Communications Satellite Systems, Inc.,
Forfeiture Order, 19 FCC Rcd 2718 (Enf. Bur. 2004); American
Family Association, Licensee of Station KBMP(FM), Enterprise,
Kansas, Notice of Apparent Liability for Forfeiture, 19 FCC Rcd
14072 (Enf. Bur. 2004); Donald W. Kaminski, Jr., Notice of
Apparent Liability for Forfeiture, 16 FCC Rcd 10707 (Enf. Bur.
2001).
We direct Fax Marketing to support its responses with an
affidavit or declaration under penalty of perjury, signed and
dated by an authorized officer of Fax Marketing with personal
knowledge of the representations provided in the Fax Marketing's
response, verifying the truth and accuracy of the information
therein and that all of the Documents and information requested
by this letter which are in the Fax Marketing's possession,
custody, control or knowledge have been produced. If multiple
Fax Marketing employees contribute to the response, in addition
to such general affidavit or declaration of the authorized
officer of Fax Marketing noted above, provide separate affidavits
or declarations of each such individual that identify clearly to
which responses the affiant or declarant is attesting. All such
declarations provided should comply with section 1.16 of the
Commission's rules, 47 C.F.R. § 1.16, and be substantially in the
form set forth therein.
Fax Marketing Corporation should direct its response to the
attention of
Kurt A. Schroeder
Deputy Chief
Telecommunications Consumers Division
Enforcement Bureau
Federal Communications Commission
445 12th Street, S.W., Rm. 4-C222
Washington, DC, 20554.
Include the file number, EB-05-TC-063, in any
correspondence.
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 TCPA and the Commission's rules. This will include any
information that you disclose in your interview or written
statement in response to the Citation and Letter of Inquiry.
Thank you in advance for your anticipated cooperation.
Sincerely,
Kurt A. Schroeder
Deputy Chief, Telecommunications
Consumers Division
Enforcement Bureau
Federal Communications Commission
Enclosures
_________________________
1These actions are taken pursuant to 47 U.S.C. §§ 154(i), 403,
503(b)(5).
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 fax advertising.
3 The facsimile advertisement(s) promotes [describe
advertisement]. According to common carrier billing information,
your company holds the opt-out number provided on the
advertisement(s) [and there is no advertiser contact number is
contained in the advertisement (include only when necessary)].
4 47 U.S.C. § 227(b)(1)(C); see also 47 C.F.R. § 64.1200(a)(3)
(providing that no person or entity may . . . use a telephone
facsimile machine, computer, or other device to send an
unsolicited advertisement to a telephone facsimile machine).
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).
5 47 U.S.C. § 227(a)(4); 47 C.F.R. § 64.1200(f)(10).
6 See 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); see also
Rules and Regulations Implementing the Telephone Consumer
Protection Act of 1991, Order, FCC 05-132 (rel. June 27, 2005).
Under the recently enacted Junk Fax Prevention Act of 2005, Pub.
L. 109-21, 119 Stat. 359 (2005), Congress amended the
Communications Act to specify, among other things, the conditions
under which an established business relationship provides an
exception to the prohibition on unsolicited fax advertising.
71995 Reconsideration Order, 10 FCC Rcd at 12408-09; see also
2003 TCPA Report and Order, 18 FCC Rcd at 14128 (concluding that
mere publication of a fax number in a trade publication or
directory does not demonstrate consent to receive fax
advertising).
8 The term ``facsimile broadcaster'' means ``a person or entity
that transmits messages to telephone facsimile machines on behalf
of another person or entity for a fee.'' 47 C.F.R. §
64.1200(f)(4).
9 47 C.F.R. § 64.1200(a)(3)(ii); Rules and Regulations
Implementing the Telephone Consumer Protection Act of 1991, Order
on Reconsideration, 18 FCC Rcd 16972 (2003).
10 See 47 C.F.R. § 1.80(b)(3).