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FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554
February 1,
2006
VIA CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Promotional Marketing
Attn : Jesse Casares and Joe Casares
10303 Northwest Freeway, Suite 350
Houston, TX 77902
RE: EB-06-TC-047
Dear Sirs:
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 you and your company to monetary forfeitures.
It has come to our attention that your company, acting under
your direction, apparently sent one or more unsolicited
advertisements to telephone facsimile machines in violation of
Section 227(b)(1)(C) of the Communications Act, as described in
the attached complaint(s). 2 Section 227(b)(1)(C) 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.'' 3 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.''4 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.5 Mere distribution or publication of a fax
number, however, does not establish consent to receive
advertisements by fax.6
If, after receipt of this citation, you or 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.
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,
Houston, TX ; however, please contact 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
Deputy Chief
Telecommunications Consumers
Division
Enforcement Bureau
Federal Communications Commission
445-12th Street, S.W., Rm. 4-C222
Washington, D.C. 20554
Reference EB-06-TC-047 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 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 We have attached the 37 complaint(s) at issue in this letter.
3 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).
4 47 U.S.C. § 227(a)(4); 47 C.F.R. § 64.1200(f)(10).
5 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.
61995 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).