Click here for Adobe Acrobat version
Click here for Microsoft Word version

********************************************************
NOTICE
********************************************************

This document was converted from Microsoft Word.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.

*****************************************************************

Before the

Federal Communications Commission

Washington, D.C. 20554

)

)
In the Matter of
) File No. EB-03-TC-036
WARRIOR CUSTOM GOLF, INC.
) NAL/Acct. No. 200432170004
a.k.a. WARRIOR GOLF
) FRN: 0012264933
Apparent Liability for Forfeiture
)

)

ADOPTING ORDER

Adopted: June 8, 2006 Released: June 12, 2006

By the Chief, Enforcement Bureau:

1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") of the Federal
Communications Commission and Warrior Custom Golf, Inc. a.k.a. Warrior
Golf ("WCG" or the "company"). The Consent Decree terminates an
investigation initiated by the Enforcement Bureau into possible
noncompliance by WCG with the statute and rules governing unsolicited,
prerecorded advertising messages, section 227 of the Communications
Act of 1934, as amended (the "Act") and section 64.1200 of the
Commission's Rules.

2. The Bureau and WCG have negotiated the terms of a Consent Decree that
would resolve this matter and terminate the investigation. A copy of
the Consent Decree is attached hereto and incorporated by reference.

3. After reviewing the terms of the Consent Decree, we find that the
public interest would be served by adopting the Consent Decree and
terminating the investigation.

4. Accordingly, IT IS ORDERED, pursuant to Section 4(i) of the
Communications Act of 1934, as amended, that the attached Consent
Decree IS ADOPTED.

5. IT IS FURTHER ORDERED that the above-captioned matter IS TERMINATED.

FEDERAL COMMUNICATIONS COMMISSION

Kris Anne Monteith

Chief, Enforcement Bureau

Before the

Federal Communications Commission

Washington, D.C. 20554

)

)
In the Matter of
) File No. EB-03-TC-036
WARRIOR CUSTOM GOLF, INC.
) NAL/Acct. No. 200432170004
a.k.a. WARRIOR GOLF
) FRN: 0012264933
Apparent Liability for Forfeiture
)

)

CONSENT DECREE

I. INTRODUCTION

1. The Enforcement Bureau ("Bureau") of the Federal Communications
Commission (the "FCC") and Warrior Custom Golf, Inc. a.k.a. Warrior Golf
("WCG" or the "company"), by their counsel and authorized representatives,
hereby enter into this Consent Decree for the purpose of terminating the
Bureau's investigation into possible noncompliance by WCG with the statute
and rules governing unsolicited, prerecorded advertising messages, section
227 of the Communications Act of 1934, as amended (the "Act") and section
64.1200 of the Commission's Rules.

II. BACKGROUND

2. On April 29, 2003, in response to a consumer complaint alleging that
WCG had left three, unsolicited, prerecorded advertisement messages on the
consumer's voicemail, the Commission staff issued a citation to WCG,
pursuant to section 503(b)(5) of the Act. The staff cited WCG for
delivering one or more prerecorded, unsolicited advertisements to a
residential telephone line, in violation of section 227 of the Act and the
Commission's rules and orders. According to the complaining consumer, the
unsolicited advertisements offered the opportunity to try custom golf
clubs without charge and requested that the consumer call a toll-free
number to take advantage of the special offer.

3. Despite the citation's warning that subsequent violations could result
in the imposition of monetary forfeitures, the Commission received
additional consumer complaints indicating that WCG apparently continued to
send illegal prerecorded, unsolicited advertisements after receiving the
citation. The complaints indicated that the prerecorded messages were
substantially the same as those described in the citation. Accordingly, on
December 8, 2004, the Bureau issued a Notice of Apparent Liability ("NAL")
to WCG, finding that the company had apparently willfully or repeatedly
violated section 227 of the Act and the Commission's rules and orders, by
delivering at least four unsolicited, prerecorded advertising messages to
at least three consumers. The NAL proposed a total forfeiture of $23,500,
representing $4,500 for each of three violations, plus $10,000 for a
fourth violation, where WCG continued to deliver the messages to a
consumer even after repeated requests to refrain.

III. DEFINITIONS

4. For the Purposes of this Consent Decree, the following definitions
shall apply:

++
++

(a) "WCG," or the "Company" means Warrior Custom Golf, Inc., Warrior Golf,
and all d/b/a entities of the company, including all subsidiaries,
commonly-owned affiliates, successors, and assigns.

(b) The "FCC" or the "Commission" means the Federal Communications
Commission.

(d) "Parties" means WCG and the Bureau.

(e) "Adopting Order" means an Order of the Bureau adopting the terms and
conditions of this Consent Decree.

(f) "Effective Date" means the date on which the Bureau adopts the
Adopting Order.

(g) "Final Order" means an order that is no longer subject to
administrative or judicial reconsideration, review, appeal, or stay.

(h) "Investigation" means the investigation commencing with the citation
issued by the Enforcement Bureau to WCG on April 29, 2003 regarding
possible noncompliance by WCG with the requirements contained in section
227(b)(1)(B) of the Act and section 64.1200(a)(2) of the Commission's
Rules during the period April 29, 2003 through October 30, 2004,
including, for purposes of this Consent Decree, all complaints that were
or could have been made against WCG for prerecorded messages delivered
during the same period.

(i) "Act" means the Communications Act of 1934, as amended.

(j) "Telemarketing" 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." 47
C.F.R. S 64.1200(f)(7).

(k) "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." 47 C.F.R. S 64.1200(f)(9).

(l) "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." 47
C.F.R. S 64.1200(f)(3).

III. AGREEMENT

5. WCG agrees that the Bureau has jurisdiction over it and the subject
matter contained in this Consent Decree and the authority to enter into
and adopt this Consent Decree.

6. The Parties agree and acknowledge that this Consent Decree shall
constitute a final settlement of the Investigation between WCG and the
Bureau. In express reliance on the covenants and representations contained
herein, the Bureau agrees to terminate the Investigation. In consideration
for the termination of this Investigation and in accordance with the terms
of this Consent Decree, WCG agrees to the terms, conditions, and
procedures contained herein.

7. The Parties agree that this Consent Decree does not constitute either
an adjudication on the merits or a factual or legal finding or
determination regarding any compliance or noncompliance by WCG with the
requirements of the Act or the Commission's rules or orders. The Parties
agree that this Consent Decree is for settlement purposes only and that by
agreeing to this Consent Decree, WCG does not admit or deny any
noncompliance, violation or liability associated with or arising from its
actions or omissions involving the Act or the Commission's rules that are
the subject of this Consent Decree.

8. In consideration for the termination of the Investigation in accordance
with the terms of this Consent Decree, WCG agrees to voluntarily implement
a Telemarketing Compliance Program consisting of the components
delineated below.

(a) WCG agrees that it will not conduct or have any involvement with
telemarketing activities or any other calling programs that utilize
prerecorded messages, regardless of the prior express consent from, or the
real or perceived established business relationship with, the called
party, and regardless of whether the calls are made for commercial or
non-commercial purposes or made by or on behalf of an actual or purported
tax-exempt nonprofit organization. WCG agrees that it will instruct all
employees accordingly in writing, and will not retain any third parties
for such purposes.

(b) Not later than 60 days after the Effective Date, and every 180 days
thereafter, WCG will submit a written report to the Bureau of its
compliance with this Consent Decree, including in the first report, its
progress in implementing its Compliance Program.

(c) WCG agrees that in the event it violates any of the provisions of
this Consent Decree, it waives its right to first receive a citation under
section 503(b) concerning such violation(s) before the Bureau may issue a
Notice of Apparent Liability.

(d) WCG will maintain and make available to the Bureau, within 14 days of
receipt of any specific request from the Bureau, business records
documenting its compliance with the terms and provisions of this Consent
Decree.

9. The parties agree and acknowledge that this Consent Decree shall
constitute a final settlement of the Investigation. The Bureau agrees
that, in the absence of material new evidence related to these matters, it
will not use the facts developed in this Investigation to institute, on
its own motion, any new proceedings, formal or informal, or to take any
actions on its own motion against the Company concerning the matters that
were the subject of this Investigation. Consistent with the foregoing,
nothing in this Consent Decree limits the Commission's authority to
consider and adjudicate any complaint that may be filed pursuant to
sections 208 of the Communications Act, as amended, and to take any action
in response to such complaint.

10. In consideration of Warrior Custom Golf's payment on April 27, 2006,
of the full forfeiture amount ($23,500) proposed in the NAL, the parties
agree that no voluntary contribution to the United States Treasury is
necessary for settlement of this matter.

11. The Company waives any and all rights it may have to seek
administrative or judicial reconsideration, review, appeal or stay, or to
otherwise challenge or contest the validity of this Consent Decree and the
Order adopting this Consent Decree, provided the Order adopts the Consent
Decree without change, addition, or modification.

12. The Parties agree that the provisions of this Consent Decree shall be
subject to final approval by the Bureau through incorporation of such
provisions by reference in an Adopting Order of the Bureau, which shall
immediately terminate the Investigation.

13. The Company's decision to enter into this Consent Decree is expressly
contingent upon issuance of an Order that is consistent with this Consent
Decree, and which adopts the Consent Decree without change, addition, or
modification.

14. In the event that this Consent Decree is rendered invalid by any court
of competent jurisdiction, it shall become null and void and may not be
used in any manner in any legal proceeding.

15. If the Commission, or the United States on behalf of the Commission,
brings a judicial action to enforce the terms of the Adopting Order,
neither the Company nor the Commission will contest the validity of the
Consent Decree or Adopting Order, and the Company will waive any statutory
right to a trial de novo.

16. Any violation of the Consent Decree or the Adopting Order will
constitute a separate violation of a Commission order, entitling the
Commission to exercise any rights and remedies attendant to the
enforcement of a Commission order.

17. The Company represents and warrants that neither the Company nor any
of its representatives, employees, agents or any other person acting
under, by, through, or on behalf of the Company, directly or indirectly,
or through any corporate or other device, shall state, represent or imply
that the FCC, or any other governmental unit or subdivision thereof,
approved or authorized any practice, act, advertisement or conduct of the
Company as a result of this Consent Decree, other than the standards and
actions set forth in this Decree.

18. The Parties also agree that if any provision of the Consent Decree
conflicts with any subsequent rule or order adopted by the Commission,
where compliance with the provision would result in a violation, that
provision will be superseded by such Commission rule or order.

19. By this Decree, the Company does not waive or alter its right to
assert and seek protection from disclosure of any privileged or otherwise
confidential and protected documents and information, or to seek
appropriate safeguards of confidentiality for any competitively sensitive
or proprietary information. The status of materials prepared for, reviews
made and discussions held in the preparation for and implementation of the
Company's compliance efforts under this Agreement, which would otherwise
be privileged or confidential, are not altered by the execution or
implementation of the terms of this Decree and no waiver of such
privileges is made by this Agreement.

20. The Companies represent and warrant that they shall not effect any
change in their form of doing business or its organizational identity or
participate directly or indirectly in any activity to form a separate
entity or corporation which engages in acts prohibited in this Consent
Decree or for any other purpose which would otherwise circumvent any part
of this Decree or the obligations of this Decree.

21. The Parties agree that the requirements of this Consent Decree shall
expire twenty-four (24) months from the Effective Date.

22. This Consent Decree may be signed in counterparts.

++
++

For: Warrior Custom Golf, Inc.

_________________ ___________________________________________

Date Brendan Flaherty

President

For: Enforcement Bureau

Federal Communications Commission

_________________ ___________________________________________

Date Kris Anne Monteith

Chief, Enforcement Bureau

See [1]47 U.S.C. S [2]227(b)(1)(B); [3]47 C.F.R. SS 64.1200(a)(2); see
also Rules and Regulations Implementing the Telephone Consumer Protection
Act of 1991, CG Docket No. 02-278, Report and Order, 18 FCC Rcd 14014
(2003) (TCPA Revisions Report and Order).

47 U.S.C. S 154(i).

WCG is headquartered at 15 Mason, Suite A, Irvine, CA 92618.

See [4]47 U.S.C. S [5]227(b)(1)(B); [6]47 C.F.R. SS 64.1200(a)(2); see
also Rules and Regulations Implementing the Telephone Consumer Protection
Act of 1991, CG Docket No. 02-278, Report and Order, 18 FCC Rcd 14014
(2003) (TCPA Revisions Report and Order).

See Citation from Kurt A. Schroeder, Deputy Chief, Telecommunications
Consumers Division, Enforcement Bureau, issued to WCG on April 29, 2003
("April 29, 2003 Citation").

See 47 U.S.C. S 503(b)(5) (requiring the Commission to issue citations to
parties who do not hold a Commission license or other authorization, for
violations of the Act or of the Commission's rules and orders).

See 47 U.S.C. S 227; 47 C.F.R. S 64.1200.

See consumer complaint from Todd Pollard, dated August 15, 2002, which was
attached to the April 29, 2003 Citation.

See the following consumer complaints: 1) Monte J. Dye, IC No.
04-W7795243, received February 16, 2004 (stating that prerecorded message
was received on February 15, 2004); 2) Andrew Pong, IC No. 04-W7875742,
received February 27, 2004 (stating that prerecorded message was received
on February 15, 2004); and 3) Mark James, received February 20, 2004
(stating that prerecorded messages were received November 13, 2003 and
February 13, 2004). All complainants signed declarations stating that they
did not have established business relationships with WCG. With regard to
the prerecorded message received by Mark James on November 13, 2003, WCG
entered into a Tolling Agreement (the "Agreement") with the Bureau,
whereby the one-year statute of limitations set forth in 47 U.S.C. S
503(b)(6) was tolled from September 10, 2004 until the earlier of: (a) the
date the FCC releases a NAL regarding any of the alleged violations
described in the Agreement; (b) the date the FCC informs WCG in writing
that it has terminated the investigation; or (c) 180 days after the date
of the Agreement. See the Agreement, signed on behalf of Kurt Schroeder of
the Bureau on September 2, 2004 and by Brendan Flaherty, President of WCG,
on September 10, 2004.

See Warrior Custom Golf, Inc. a.k.a. Warrior Golf, Notice of Apparent
Liability for Forfeiture, 19 FCC Rcd. 23,648 (Enf. Bur. 2004).

See 47 U.S.C. S 227; 47 C.F.R. S 64.1200.

47 U.S.C. S 208.

Federal Communications Commission DA 06-1237

References

Visible links
1. http://web2.westlaw.com/find/default.wl?DB=1000546&DocName=47USCAS227&FindType=L&AP=&RS=WLW4.05&VR=2.0&FN=_top&SV=Split&MT=Westlaw
2. http://web2.westlaw.com/find/default.wl?DB=1000546&DocName=47USCAS227&FindType=L&AP=&RS=WLW4.05&VR=2.0&FN=_top&SV=Split&MT=Westlaw
3. http://web2.westlaw.com/find/default.wl?DB=1000547&DocName=47CFRS64%2E1200&FindType=L&AP=&RS=WLW4.05&VR=2.0&FN=_top&SV=Split&MT=Westlaw
4. http://web2.westlaw.com/find/default.wl?DB=1000546&DocName=47USCAS227&FindType=L&AP=&RS=WLW4.05&VR=2.0&FN=_top&SV=Split&MT=Westlaw
5. http://web2.westlaw.com/find/default.wl?DB=1000546&DocName=47USCAS227&FindType=L&AP=&RS=WLW4.05&VR=2.0&FN=_top&SV=Split&MT=Westlaw
6. http://web2.westlaw.com/find/default.wl?DB=1000547&DocName=47CFRS64%2E1200&FindType=L&AP=&RS=WLW4.05&VR=2.0&FN=_top&SV=Split&MT=Westlaw