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March 27, 2006
VIA CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Intercoast Marketing
Attn: Robert Hammer, President
127 West Fairbanks Ave., #294
Winter Park, FL 32789-4312
a.k.a. Corporate Inc./Intercoast Marketing
Attn: Robert Hammer, President
127 West Fairbanks Ave., #294
Winter Park, FL 32789-4312
RE: EB-06-TC-078
Dear Mr. Hammer:
This is an official CITATION and LETTER OF INQUIRY 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. 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
involved in transmitting to telephone facsimile machines unsolicited
advertisements for property, goods, or services offered by another entity
(see attachments). 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. S 227(b)(1)(C)
AND 47 C.F.R. S 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." 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." 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. Mere distribution or publication of a fax number, however,
does not establish consent to receive advertisements by fax.
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 broadcaster has "a high degree
of involvement in, or actual notice of, the unlawful activity and fails to
take steps to prevent such facsimile transmissions." 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 Intercoast 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.
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 Tampa Office in
Tampa, 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 [1]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 Intercoast Marketing or Corporate, Inc./Intercoast
Marketing (Intercoast), pursuant to sections 4(i), 4(j), and 403 of the
Act, 47 U.S.C. SS 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 Intercoast 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. S 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 Intercoast 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). Intercoast 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 Intercoast 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
Intercoast 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, Intercoast is directed to retain the originals of those
documents for twelve (12) months from the date of this letter unless (a)
Intercoast 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, Intercoast 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. Intercoast 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, Intercoast must supplement its responses
(a) if Intercoast 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 Intercoast after the initial production. The requirement to
update the record will continue for twelve (12) months from the date of
this letter unless (a) Intercoast is directed or informed by the
Enforcement Bureau in writing that Intercoast'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 January 1, 2005 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).
Intercoast shall mean Intercoast Marketing or Corporate Inc./Intercoast
Marketing 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.
Inquiries: Documents and Information to be Provided
1. Discuss in detail Intercoast'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 Intercoast transmitted such advertisements. Discuss any other
services that Intercoast 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 Intercoast 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 Intercoast 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 Intercoast had any control over or involvement in influencing the
content of the attached advertisements or any other advertisements
that Intercoast transmits by facsimile? Does Intercoast 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 Intercoast transmits
by facsimile? Provide all relevant documents.
5. If Intercoast 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 Intercoast transmits by facsimile, describe in
detail the process by which Intercoast obtains, produces, or
participates in the generation of such list(s). Does Intercoast employ
or compensate any individuals or entities outside Intercoast 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 Intercoast 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 Intercoast transmits by facsimile, what steps has
Intercoast 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 Intercoast
records consumers' consent or the existence of an established business
relationship. Provide all relevant documents.
7. Does Intercoast 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).
8. Provide the names and addresses of all principals of Intercoast and a
full description of each person's position and interest in Intercoast.
9. Provide the number of customers served by Intercoast on a monthly
basis for the previous twelve months.
We direct Intercoast to support its responses with an affidavit or
declaration under penalty of perjury, signed and dated by an authorized
officer of Intercoast with personal knowledge of the representations
provided in the Intercoast'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 Intercoast's possession,
custody, control or knowledge have been produced. If multiple Intercoast
employees contribute to the response, in addition to such general
affidavit or declaration of the authorized officer of Intercoast 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. S 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. S 1001; see also 47
C.F.R. S 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).
Intercoast should direct its response to the attention of
Kurt A. Schroeder
Deputy Chief
Telecommunications Consumers Division
Enforcement Bureau
Federal Communications Commission
445 12^th Street, S.W., Rm. 4-C222
Washington, DC, 20554.
Include the file number, EB-06-TC-078, in any correspondence.
Under the Privacy Act of 1974, 5 U.S.C. S 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
These actions are taken pursuant to 47 U.S.C. SS 154(i), 403, 503(b)(5).
47 U.S.C. S 227; 47 C.F.R. S 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.
We have attached eleven complaints at issue in this citation and Letter of
Inquiry. At least 350 additional complaints are not attached but are
available from the FCC's complaint database. According to common carrier
billing information, your company holds the contact number provided on the
advertisements .
47 U.S.C. S 227(b)(1)(C); see also 47 C.F.R. S 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. S 227(a)(2); 47
C.F.R. S 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).
47 U.S.C. S 227(a)(4); 47 C.F.R. S 64.1200(f)(10).
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.
1995 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).
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. S 64.1200(f)(4).
47 C.F.R. S 64.1200(a)(3)(ii); Rules and Regulations Implementing the
Telephone Consumer Protection Act of 1991, Order on Reconsideration, 18
FCC Rcd 16972 (2003).
See 47 C.F.R. S 1.80(b)(3).
Federal Communications Commission DA 06-655
2
2
Federal Communications Commission DA 06-655
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554
References
Visible links
1. mailto:fcc504@fcc.gov