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March 31, 2006
VIA CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Direct Link, Inc.
d.b.a. Live Link Technologies
249 E. Ocean Boulevard, Suite 814
Long Beach, CA 90802
Attention: David Botton
Direct Link, Inc.
d.b.a. Live Link Technologies
17971 Biscayne Boulevard, Suite 213
Aventura, FL 33160
Attention: David Botton
RE: EB-06-TC-080
Dear Mr. Botton:
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. S 503(b)(5),
for violations of the Act 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, acting under your
direction, has delivered one or more prerecorded messages to a residential
telephone line or lines in violation of section 227(b)(1)(B) of the Act
and section 64.1200(a)(2) of the Commission's rules, as described in the
attached complaint(s). Under Section 227(b)(1)(B) of the Act and section
64.1200(a)(2) 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 initiate any telephone call
to any residential telephone line using an artificial or prerecorded voice
to deliver a message without the prior express consent of the called
party, unless the call
(i) Is made for emergency purposes,
(ii) Is not made for a commercial purpose,
(iii) Is made for a commercial purpose but does not include or introduce
an unsolicited advertisement or constitute a telephone solicitation,
(iv) Is made to any person with whom the caller has an established
business relationship at the time the call is made, or
(v) Is made by or on behalf of a tax-exempt nonprofit organization.
Accordingly, it is generally unlawful to use an artificial or prerecorded
voice to deliver an advertisement or telephone solicitation to a
residential telephone line unless the call is made: (1) by or on behalf of
a tax-exempt nonprofit organization; (2) with the prior express consent of
the called party; or (3) to a person who has an established business
relationship with the caller.
The attached information indicates that your company, acting under your
direction, delivered an unsolicited advertisement or telephone
solicitation, through a prerecorded message, to one or more residential
telephone subscribers who either (1) had not expressly invited or
authorized the call(s) or (2) did not have an established business
relationship with you or your company (a transaction within 18 months
prior to the call(s), or an inquiry or application within 3 months prior
to the call(s)). As explained above, this action violates section
227(b)(1)(B) of the Communications Act and section 64.1200(a)(2) of the
Commission's rules.
Further, under section 227(b)(1)(A)of the Act and section 64.1200(a)(1) of
the Commission's rules, it is unlawful to initiate calls using an
automatic telephone dialing system or an artificial or prerecorded voice
to (1) any emergency telephone line, (2) the telephone line of any guest
or patient room at a health care facility, or (3) any telephone number
assigned to a paging service, cellular telephone service or any service
for which the called party is charged for the call. The provisions provide
exceptions when the call is made (1) for emergency purposes, or (2) with
the prior express consent of the called party. The attached information
indicates that your company, acting under your direction, delivered one or
more artificial or prerecorded messages to a cellular telephone line or
lines, and that each message was delivered neither for emergency purposes
nor with the prior express consent of the called party. This action
violates section 227(b)(1)(A)(iii) of the Act and section
64.1200(a)(1)(iii) of the Commission's rules.
Separately, it appears that you and your company have also violated other
Commission rules that govern all prerecorded messages. Under section
64.1200(b), prerecorded messages must, at the beginning of the message,
state clearly the identity of the business (the name under which the
business is registered to conduct business with the State Corporation
Commission or comparable regulatory authority), individual, or other
entity that is responsible for initiating the call. In addition, the
telephone number or address of such business, or individual, or other
entity must be provided either during or after the prerecorded message.
According to the attached information received by the Commission, it
appears that your telephone solicitation(s) did not contain all of the
required information.
In addition, it appears that your company, acting under your direction,
has also violated the caller identification provisions in the Commission's
rules. Under section 64.1601(e), any person or entity that engages in
telemarketing must transmit caller identification information. The caller
identification information must include: 1) the telemarketer's telephone
number used in, or billed for, making the call; and 2) when made available
by the telemarketer's carrier, the name of the telemarketer. The telephone
number transmitted in the caller identification information must permit
any individual to make a do-not-call request during regular business
hours. Further, section 64.1601(e)(ii) specifically prohibits any person
or entity that engages in telemarketing from blocking the transmission of
caller identification information. The only entities that are exempt from
the Commission's caller identification provisions are tax-exempt nonprofit
organizations. According to the attached information received by the
Commission, it appears that your telemarketing calls did not transmit the
required caller identification information.
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 San Diego Office in
San Diego, California; 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
445-12^th Street, S.W.
Rm. 4-C222
Washington, D.C. 20554
Reference EB-06-TC-080 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 [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).
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, 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.
S 1001.
Thank you in advance for your anticipated cooperation.
Sincerely,
Kurt A. Schroeder
Deputy Chief, Telecommunications Consumers Division
Enforcement Bureau
Federal Communications Commission
Enclosures
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 prerecorded messages to residential telephone lines.
We have attached the 2 complaints at issue in this citation. At least 24
additional complaints are not attached but are available from the FCC's
complaint database.
The term "emergency purposes" means calls made necessary in any situation
affecting the health and safety of consumers." 47 C.F.R. S 64.1200(f)(2).
The term "unsolicited advertisement" means "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." 47 U.S.C.S 227(a)(4); 47 C.F.R. S
64.1200(f)(10).
The term "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, but such term does not
include a call or message:
(i) To any person with that person's prior express invitation or
permission;
(ii) To any person with whom the caller has an established business
relationship; or
(iii) By or on behalf of a tax-exempt nonprofit organization.
47 U.S.C. S 227(a)(3); 47 C.F.R.S 64.1200(f)(9).
The term "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.
(i) The subscriber's seller-specific do-not-call request, as set forth in
paragraph (d)(3) of this section, terminates an established business
relationship for purposes of telemarketing and telephone solicitation even
if the subscriber continues to do business with the seller.
(ii) The subscriber's established business relationship with a particular
business entity does not extend to affiliated entities unless the
subscriber would reasonably expect them to be included given the nature
and type of goods or services offered by the affiliate and the identity of
the affiliate.
47 C.F.R. S 64.1200(f)(3)
The term "automatic telephone dialing system" means "equipment which has
the capacity to store or produce telephone numbers to be called, using a
random or sequential number generator, and to dial such numbers." 47
U.S.C. S 227(a)(1); 47 C.F.R. S 64.1200(f)(1).
47 U.S.C. S 227(b)(1)(A)(i) - (iii); 47 C.F.R. S 64.1200(a)(1)(i) - (iii).
47 U.S.C. S 227(b)(1)(A); 47 C.F.R. S 64.1200(a)(1).
Any telephone number so provided may not be for (1) an autodialer or
prerecorded message player that placed the call, (2) a 900 number, or (3)
any other number for which charges exceed local or long distance
transmission charges. In addition, any such telephone number provided in
connection with a prerecorded sales messages to a residential telephone
subscriber must permit any individual to make a do-not-call request during
regular business hours for the duration of the telemarketing campaign.
47 C.F.R. S 64.1601(e). The term "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).
47 C.F.R. S 64.1601(e)(i). The rule's requirements are also fulfilled if
the caller identification information substitutes the name of the seller
on behalf of which the telemarketing call is placed and the seller's
customer service telephone number. Id.
47 C.F.R. S 1601(e)(i).
47 C.F.R. S 1601(e)(ii).
47 C.F.R. S 1601(e)(iii).
See 47 C.F.R. S 1.80(b)(3).
Federal Communications Commission DA 06-749
1
2
Federal Communications Commission DA 06-749
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554
References
Visible links
1. mailto:fcc504@fcc.gov