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- 07-TC-578      
                                                                         
     AZ Prime One Mortgage Corporation   )   NAL/Acct. No. 200832170010  
                                                                         
     Apparent Liability for Forfeiture   )   FRN: 0017433095             
                                                                         
                                         )                               
                                                                         
                                         )                               
                                                                         
                                         )                               


                  NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted: May 2, 2008 Released: May 2, 2008

   By the Chief, Enforcement Bureau:

   I. INTRODUCTION

    1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
       that AZ Prime One Mortgage ("AZ Prime One") apparently willfully or
       repeatedly violated section 64.1200(c)(2) of the Commission's rules,
       by making telephone calls for the purpose of delivering telephone
       solicitations to two residential telephone consumers who had
       registered their telephone numbers on the National Do-Not-Call
       Registry. Based on the facts and circumstances surrounding these
       apparent violations, we find that AZ Prime One is apparently liable
       for a forfeiture in the amount of $20,000.00.

   II. BACKGROUND

   2. Section 64.1200(c)(2) of the Commission's rules generally prohibits the
   delivery of telephone solicitations to residential telephone numbers that
   are contained in the National Do-Not-Call Registry, except in certain
   limited situations. Under the Communications Act of 1934, as amended
   ("Act"), and the Commission's rules, a "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." Not every promotional call, however,
   constitutes a prohibited telephone solicitation under this rule. Calls
   made by or on behalf of a tax-exempt nonprofit organization are not
   considered to be telephone solicitations. Similarly, calls that are made
   to a person who either has provided prior express invitation or permission
   to call or has an established business relationship with the caller are
   not considered to be telephone solicitations. In addition to these
   statutory exemptions, section 64.1200(c)(2)(iii) also permits telephone
   solicitations to National Do-Not-Call registrants in the limited situation
   in which the caller has a personal relationship with the called party.

    3. Entities making telephone solicitations must honor do-not-call
       registrations no later than 31 days after a number is placed on the
       National Do-Not-Call Registry, and for a period of no less than five
       years. To accomplish this, section 64.1200(c)(2)(i)(D) requires
       entities making telephone solicitations to use a version of the
       National Do-Not-Call Registry obtained no more than 31 days before any
       telephone solicitation is made, and to document this process. An
       entity that does not claim one of the exemptions set forth above is
       not liable for calling a telephone number on the National Do-Not-Call
       Registry only if it is able to demonstrate both that it has fully
       complied with the Commission's standards governing use of the National
       Do-Not-Call Registry as set out in section 64.1200(c)(2)(i)(A)-(E) of
       the rules, and that the particular telephone solicitation call was the
       result of specific error.

    4. In order to comply with the Commission's standards, a person or entity
       initiating a telephone solicitation must first demonstrate that, as
       part of its routine business practice it has: (1) established and
       implemented written procedures to comply with the do-not-call rules;
       (2) trained its personnel, and any entity assisting in its compliance,
       in the procedures established pursuant to the do-not-call rules; (3)
       maintained and recorded a list of telephone numbers the seller may not
       contact; (4) used a process to prevent telemarketing to any telephone
       number on any list established pursuant to the do-not-call rules
       employing a version of the National Do-Not-Call Registry obtained from
       the administrator of the Registry within a designated time frame, and
       has maintained records documenting this process; and (5) used a
       process to ensure that it does not sell, rent, lease, purchase, or use
       the Registry for any purpose except national do-not-call compliance,
       and that it has purchased access to the Registry from the Registry
       administrator without participating in any cost sharing arrangement
       with any other entity. We reiterate, however, that the "safe harbor"
       from liability only applies if such person or entity is able to show
       that the particular violative calls made in spite of adherence to the
       enumerated do-not-call procedures were the result of specific error.

   5. On February 28, 2007, in response to a consumer complaint alleging that
   AZ Prime One had made a telephone call for the purpose of delivering
   telephone solicitations to a residential telephone consumer who had
   registered a telephone number on the National Do-Not-Call Registry, the
   Bureau issued a citation to AZ Prime One, pursuant to section 503(b)(5) of
   the Act. The Bureau cited AZ Prime One for delivering one or more
   telephone solicitations to residential telephone consumers who had
   registered their telephone numbers on the National Do-Not-Call Registry,
   in violation of section 64.1200(c)(2) of the Commission's rules. The
   citation, which was served by certified mail, return receipt requested,
   warned AZ Prime One that subsequent violations could result in the
   imposition of monetary forfeitures of up to $11,000 per violation, and
   included a copy of the consumer complaint that formed the basis of the
   citation. The citation informed AZ Prime One that within 30 days of the
   date of the citation, it could either request an interview with Commission
   staff, or could provide a written statement responding to the citation. AZ
   Prime One did not request an interview or otherwise respond to the
   citation.

   6. Despite the citation's warning that subsequent violations could result
   in the imposition of monetary forfeitures, we have received two additional
   consumer complaints indicating that AZ Prime One continued to engage in
   such conduct after receiving the citation. We base our action here
   specifically on two complaints filed by two consumer establishing that AZ
   Prime One continued to deliver telephone solicitation after the date of
   the citation to consumers who had registered their telephone numbers on
   the National Do-Not-Call Registry.

   7. Section 503(b) of the Act authorizes the Commission to assess a
   forfeiture of up to $11,000 for each violation of the Act or of any rule,
   regulation, or order issued by the Commission under the Act by a
   non-common carrier or other entity not specifically designated in section
   503 of the Act. In exercising such authority, we are to take into account
   "the nature, circumstances, extent, and gravity of the violation and, with
   respect to the violator, the degree of culpability, any history of prior
   offenses, ability to pay, and such other matters as justice may require."

   III. DISCUSSION

    A. Violations of the Commission's Rules

   8. We find that AZ Prime One apparently violated section 64.1200(c)(2) of
   the Commission's rules and orders by making at least two telephone
   solicitations to the consumers identified in the Appendix, who had
   registered their telephone numbers on the National Do-Not-Call registry.
   This NAL is based on evidence that two consumers who had registered their
   telephone numbers on the National Do-Not-Call registry received telephone
   solicitations from AZ Prime One after the Bureau's citation. The calls
   advertised mortgage refinancing. Hence, the calls fall within the
   definition of a "telephone solicitation." Further, we find that the calls
   at issue were not made on behalf of a tax exempt, nonprofit organization.
   In addition, according to the complaints, the consumers neither had an
   established business relationship with AZ Prime One nor gave AZ Prime One
   prior express invitation or permission to deliver the telephone
   solicitations. Finally, AZ Prime One made the calls at issue more than
   thirty-one (31) days after the consumer placed her residential telephone
   number on the National Do-Not-Call Registry. Based on the entire record,
   including evidence provided in the consumer complaints, we conclude that
   AZ Prime One apparently violated section 64.1200(c)(2) the Commission's
   rules by delivering a telephone solicitation to a consumer who had
   registered her telephone number on the National Do-Not-Call registry.

   .

    B. Proposed Forfeiture

   9. We find that AZ Prime One is apparently liable for a forfeiture in the
   amount of $20,000. The Commission's Forfeiture Policy Statement does not
   establish a base forfeiture amount for violating the prohibition on making
   telephone solicitations to customers who have registered on the National
   Do-Not-Call Registry. The Commission has found that a national do-not-call
   violation implicates the same concern as a violation of the company
   specific do-not-call rules and, accordingly, justifies the application of
   the $10,000 base amount that the Commission previously proposed for
   company specific do-not call violations. We apply that base amount to
   these two apparent telephone solicitation violations, and thus, we propose
   a total forfeiture of $20,000. AZ Prime One will have the opportunity to
   submit evidence and arguments in response to this NAL to show that no
   forfeiture should be imposed or that some lesser amount should be
   assessed.

   IV. CONCLUSION AND ORDERING CLAUSES

   10. We have determined that AZ Prime One Mortgage Corporation apparently
   violated section 64.1200(c)(a) of the Commission's rules by delivering at
   least two telephone solicitations to the two consumers identified in the
   Appendix who had registered their telephone numbers on the National
   Do-Not-Call registry. We have further determined that AZ Prime One
   Mortgage Corporation is apparently liable for a forfeiture in the amount
   of $20,000.00.

   11. Accordingly, IT IS ORDERED, pursuant to section 503(b) of the Act, 47
   U.S.C.

   S: 503(b), and section 1.80 of the Rules, 47 C.F.R. S: 1.80, and under the
   authority delegated by sections 0.111 and 0.311 of the Commission's rules,
   47 C.F.R. S:S: 0.111, 0.311, that AZ Prime One Mortgage Corporation is
   hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount
   of $20,000.00 for willful or repeated violations of section 64.1200(c)(2)
   of the Commission's rules, 47 C.F.R. S: 64.1200(c)(2), and the related
   orders described in the paragraphs above.

   12. IT IS FURTHER ORDERED THAT, pursuant to section 1.80 of the
   Commission's rules, within thirty (30) days of the release date of this
   Notice of Apparent Liability for Forfeiture, AZ Prime One Mortgage
   Corporation SHALL PAY the full amount of the proposed forfeiture or SHALL
   FILE a written statement seeking reduction or cancellation of the proposed
   forfeiture.

   13. Payment of the forfeiture must be made by credit card through the
   Commission's Revenue and Receivables Operations Group at (202) 418-1995,
   or by check or similar instrument, payable to the order of the Federal
   Communications Commission. The payment must include the Account Number and
   FRN Number referenced above. Payment by check or money order may be mailed
   to Federal Communications Commission, P.O. Box 979088, St. Louis, MO
   63197-9000. Payment by overnight mail may be sent to U.S. Bank -
   Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis,
   MO 63101. Payment[s] by wire transfer may be made to ABA Number 021030004,
   receiving bank Federal Reserve Bank of New York, and account number
   27000001. Requests for full payment under an installment plan should be
   sent to:  Chief Financial Officer -- Financial Operations, 445 12th
   Street, S.W., Room 1-A625, Washington, D.C.  20554.   Questions, please
   contact the Financial Operations Group Help Desk at 1-877-480-3201 or
   Email: ARINQUIRIES@fcc.gov. The response, if any, must be mailed both to
   the Office of the Secretary, Federal Communications Commission, 445 12th
   Street, SW, Washington, DC 20554, ATTN: Enforcement Bureau -
   Telecommunications Consumers Division, and to Colleen Heitkamp, Chief,
   Telecommunications Consumers Division, Enforcement Bureau, Federal
   Communications Commission, 445 12th Street, SW, Washington, DC 20554, and
   must include the NAL/Acct. No. referenced in the caption.

   14. The Commission will not consider reducing or canceling a forfeiture in
   response to a claim of inability to pay unless the petitioner submits: (1)
   federal tax returns for the most recent three-year period; (2) financial
   statements prepared according to generally accepted accounting practices;
   or (3) some other reliable and objective documentation that accurately
   reflects the petitioner's current financial status. Any claim of inability
   to pay must specifically identify the basis for the claim by reference to
   the financial documentation submitted.

   15. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
   for Forfeiture shall be sent by Certified Mail Return Receipt Requested to
   AZ Prime One Mortgage Corporation aka HomePlaceLoans.com, Attention:
   Kimberly Callan, President; Brian Ramsey, Secretary; and Donald W.
   Hudspeth, Registered Agent, 7145 E. 1st St., Scottsdale, AZ 85251-5307 and
   20601 N. 19th Ave. #100, Phoenix, AZ 85027-3587.

   FEDERAL COMMUNICATIONS COMMISSION

   Kris Anne Monteith

   Chief, Enforcement Bureau

                                    APPENDIX


     Complainant received telephone solicitations after   Violation Date(s)  
     registering on the National Do-Not-Call Registry                        

     David Suda                                           5/9/2007           

     William Paynter                                      5/12/2007          


   See 47 U.S.C. S: 503(b)(1). The Commission has the authority under this
   section of the Act to assess a forfeiture against any person who has
   "willfully or repeatedly failed to comply with any of the provisions of
   this Act or of any rule, regulation, or order issued by the Commission
   under this Act ...." See also 47 U.S.C. S: 503(b)(5) (stating that the
   Commission has the authority under this section of the Act to assess a
   forfeiture penalty against any person who does not hold a license, permit,
   certificate or other authorization issued by the Commission or an
   applicant for any of those listed instrumentalities so long as such person
   (A) is first issued a citation of the violation charged; (B) is given a
   reasonable opportunity for a personal interview with an official of the
   Commission, at the field office of the Commission nearest to the person's
   place of residence; and (C) subsequently engages in conduct of the type
   described in the citation).

   According to publicly available information, AZ Prime One is also doing
   business as Prime One Mortgage Corporation and HomePlaceLoans.com.
   Therefore, all references in this NAL to "AZ Prime One" encompass AZ Prime
   One Mortgage as well as Prime One Mortgage Corporation and
   HomePlaceLoans.com. AZ Prime One has offices at 7145 E. 1st St.,
   Scottsdale, AZ 85251-5307, 20601 N. 19th Ave. #100, Phoenix, AZ
   85027-3587, and 10625 N. 25th Ave., Phoenix, AZ 85029-4773. Kimberly
   Callan, President, Brian Ramsey, Secretary, and Donald W. Hudspeth,
   Registered Agent, are listed as contact persons for AZ Prime One.
   Accordingly, all references in this NAL to "AZ Prime One" also encompass
   the foregoing individuals and all other principals and officers of this
   entity or entities, as well as the corporate entity or entities.

   See 47 C.F.R. S: 64.1200(c)(2).

   47 C.F.R. S: 64.1200(c)(2).

   47 U.S.C. S: 227(a)(3); 47 C.F.R. S: 64.1200(f)(12).

   47 U.S.C S: 227(a)(3); 47 C.F.R. S: 64.1200(f)(12).

   Section 64.1200(c)(2)(ii) of our rules requires that prior express
   invitation or permission "must be evidenced by a signed, written agreement
   between the consumer and seller which states that the consumer agrees to
   be contacted by this seller and includes the telephone number to which the
   calls may be placed." 47 C.F.R. S: 64.1200(c)(2)(ii).

   For do-not-call purposes, 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." 47 C.F.R. S: 64.1200(f)(4). The established business
   relationship exception does not apply when a telephone subscriber has made
   a company-specific do-not-call request. A company-specific do-not-call
   request terminates an established business relationship for telemarketing
   purposes even if the requester continues to do business with the company.
   47 C.F.R. S: 64.1200(f)(4)(i); see also Rules and Regulations Implementing
   the Telephone Consumer Protection Act of 1991, Report and Order, 18 FCC
   Rcd 14014, 14070, para. 96 (2003); Rules and Regulations Implementing the
   Telephone Consumer Protection Act of 1991, Report and Order, 7 FCC Rcd
   8752, 8766 n.47, 8770 n.63 (1992); see also H.R. Rep. 102-317, 1st Sess.,
   102nd Cong. at 15 (1991); Charvat v. Dispatch Consumer Services, Inc., 95
   Ohio St. 3d 505, 769 N.E.2d 829 (2002).

   The term "personal relationship" means "any family member, friend, or
   acquaintance of the telemarketer making the call." 47 C.F.R. S:
   64.1200(f)(14).

   The 31-day requirement applies to telephone solicitations made on or after
   January 1, 2005. Rules and Regulations Implementing the Telephone Consumer
   Protection Act of 1991, Order, 19 FCC Rcd 19215 (2004). Previously, the
   Commission's rules provided that do-not-call registrations had to be
   honored within 3 months. Rules and Regulations Implementing the Telephone
   Consumer Protection Act of 1991, Report and Order, 18 FCC Rcd 14014,
   14040, para. 38 (2003). The 3-month provision applied to telephone
   solicitations made before January 1, 2005.

   47 C.F.R. S: 64.1200(c0(2)(1)(A)-(E).

   Citation from Kurt A. Schroeder, Deputy Chief, Telecommunications
   Consumers Division, Enforcement Bureau, File No. EB-07-TC-578, issued to
   AZ Prime One Mortgage Company on February 28, 2007.

   See 47 U.S.C. S: 503(b)(5) (authorizing the Commission to issue citations
   to persons who do not hold a license, permit, certificate or other
   authorization issued by the Commission or an applicant for any of those
   listed instrumentalities for violations of the Act or of the Commission's
   rules and orders).

   Commission staff mailed the citation to AZ Prime One Mortgage Company ,
   Attn: Brian Ramsey, President, 7145 East 1st Street, Scottsdale, Arizona
   85251-5307. See n.2, supra.

   Following the issuance of the citation, the Commission continued to
   receive complaints from multiple customers alleging that AZ Prime One
   placed calls to consumers on the National Do Not Call list. One of these
   complaints, received after the Commission's citation, resulted in the
   issuance of a Notice Of Apparent Liability for Forfeiture against AZ Prime
   One on February 15, 2008 in the amount of $10,000. AZ Prime One Mortgage,
   Notice of Apparent Liability for Forfeiture, DA 08-397 (Enf. Bur. Feb. 15,
   2008).

   See Appendix for a listing of the consumer complaint against AZ Prime One
   requesting Commission action.

   We note that evidence of additional instances of unlawful conduct by AZ
   Prime One may form the basis of subsequent enforcement action.

   Section 503(b)(2)(C) provides for forfeitures up to $10,000 for each
   violation in cases not covered by subparagraph (A) or (B), which address
   forfeitures for violations by licensees and common carriers, among others.
   See 47 U.S.C. S: 503(b). In accordance with the inflation adjustment
   requirements contained in the Debt Collection Improvement Act of 1996,
   Pub. L. 104-134, Sec. 31001, 110 Stat. 1321, the Commission implemented an
   increase of the maximum statutory forfeiture under section 503(b)(2)(C) to
   $11,000. See 47 C.F.R. S: 1.80(b)(3); Amendment of Section 1.80 of the
   Commission's Rules and Adjustment of Forfeiture Maxima to Reflect
   Inflation, 15 FCC Rcd 18221 (2000); see also Amendment of Section 1.80(b)
   of the Commission's Rules and Adjustment of Forfeiture Maxima to Reflect
   Inflation, 19 FCC Rcd 10945 (2004) (this recent amendment of section
   1.80(b) to reflect inflation left the forfeiture maximum for this type of
   violator at $11,000).

   47 U.S.C. S: 503(b)(2)(D); The Commission's Forfeiture Policy Statement
   and Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture
   Guidelines, Report and Order, 12 FCC Rcd 17087, 17100-01 para. 27 (1997)
   (Forfeiture Policy Statement), recon. denied, 15 FCC Rcd 303 (1999).

   See 47 U.S.C. S: 227(a)(4); 47 C.F.R. S: 64.1200(f)(12).

   See complaint dated May 9, 2007, from David Suda (stating that he has
   never done any business with the company, never made an inquiry or
   application to the company, and never gave permission for the company to
   make the call). The complainants involved in this action are listed in the
   Appendix below.

   The Commission's Forfeiture Policy Statement and Amendment of Section 1.80
   of the Rules to Incorporate the Forfeiture Guidelines, Report and Order,
   12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999) (Forfeiture
   Policy Statement).

   Dynasty Mortgage, LLC, Order of Forfeiture, 22 FCC Rcd 9453, 9469, para.
   43 (2007).

   See  47 U.S.C. S: 503(b)(4)(C); 47 C.F.R. S: 1.80(f)(3).

   47 C.F.R. S: 1.80.

   (...continued from previous page)

                                                              (continued....)

   Federal Communications Commission DA 08-1057

   2

   2

   Federal Communications Commission DA 08-1057