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.
*****************************************************************
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554
January 24, 2006
VIA CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Intelligent Alternatives, LLC
Attention: Carlon Rogers, Owner
10655 Roselle Street, Suite H
San Diego, California 92121-1554
Intelligent Alternatives, LLC
Attention: Carlon Rogers, Owner
1055 S. Mollison Avenue, #42
El Cajón, California 92020
RE: EB-05-TC-065
Dear Mr. Rogers:
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, 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).2
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,3
(ii) Is not made for a commercial purpose,
(iii) Is made for a commercial purpose but does not
include or introduce an unsolicited
advertisement4 or constitute a telephone
solicitation,5
(iv) Is made to any person with whom the caller has an
established business relationship6 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 system7 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.8 The provisions
provide exceptions when the call is made (1) for emergency
purposes, or (2) with the prior express consent of the called
party.9 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 number10 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.11 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.12 The telephone number transmitted in the caller
identification information must permit any individual to make a
do-not-call request during regular business hours.13 Further,
section 64.1601(e)(ii) specifically prohibits any person or
entity that engages in telemarketing from blocking the
transmission of caller identification information.14 The only
entities that are exempt from the Commission's caller
identification provisions are tax-exempt nonprofit
organizations.15 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.16
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
445-12th Street, S.W.
Rm. 4-C222
Washington, D.C. 20554
Reference EB-05-TC-065 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 prerecorded messages to residential
telephone lines.
2 We have attached the 17 complaints at issue in this letter.
3 The term ``emergency purposes'' means calls made necessary in
any situation affecting the health and safety of consumers.'' 47
C.F.R. § 64.1200(f)(2).
4 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.§ 227(a)(4); 47 C.F.R. § 64.1200(f)(10).
5 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. § 227(a)(3); 47 C.F.R.§ 64.1200(f)(9).
6 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. § 64.1200(f)(3)
7 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. § 227(a)(1); 47
C.F.R. § 64.1200(f)(1).
8 47 U.S.C. § 227(b)(1)(A)(i) - (iii); 47 C.F.R. §
64.1200(a)(1)(i) - (iii).
9 47 U.S.C. § 227(b)(1)(A); 47 C.F.R. § 64.1200(a)(1).
10 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.
11 47 C.F.R. § 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. § 64.1200(f)(7).
12 47 C.F.R. § 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.
13 47 C.F.R. § 1601(e)(i).
14 47 C.F.R. § 1601(e)(ii).
15 47 C.F.R. § 1601(e)(iii).
16 See 47 C.F.R. § 1.80(b)(3).