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March 26, 2008
VIA CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Thomas Carmichael
14310 Muirfield Lane
Houston, Texas 77095-3410
RE: File No. EB-08-TC-080
Dear Mr. Carmichael:
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, you may appeal this citation. In addition, future
violations of the Act or Commission's rules in this regard may subject you
and your company to monetary forfeitures.
Attached is a consumer complaint regarding a prerecorded message that your
company, acting under your direction, has delivered to a residential
telephone line or lines. This complaint indicates that you and your
company have violated section 227(b)(1)(B) of the Act and section
64.1200(a)(2) of the Commission's rules. See 47 U.S.C. S: 227(b)(1)(B); 47
C.F.R. S: 64.1200(a)(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,
(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.
In addition, the attached consumer complaint involves a telemarketing call
that your company, or an entity acting on behalf of your company, made to
telephone lines that are contained in the National Do-Not-Call Registry.
The complaint indicates that your company, acting under your direction,
has violated the Commission's rules regarding telephone solicitations. See
47 C.F.R. S: 64.1200(c)(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 and the Commission's
rules, a "telephone solicitation" is "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." Calls made by or on behalf of tax-exempt nonprofit groups 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. Finally, the rules permit
telephone solicitations to a consumer whose number is listed on the
National Do-Not-Call Registry if that consumer has a personal relationship
with the individual making the calls.
Accordingly, under the Commission's rules, it is unlawful to deliver a
telephone solicitation to a residential telephone line on the National
Do-Not-Call Registry unless: (1) the call is made by or on behalf of a
tax-exempt nonprofit group; (2) the call is made by a person who has a
personal relationship with the called party; (3) the called party has
provided signed, written consent for the call to be made; or (4) the
called party has made a purchase from, or had a transaction with, the
caller within the 18 months immediately preceding the call or has made an
inquiry or application regarding the caller's products or services within
the three months immediately preceding the call, and the called party has
not specifically asked the caller to stop all telemarketing calls.
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 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 error.
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. You
may use this response to appeal this citation. For example, you may claim
that you can document that you had an established business relationship
with the called party at the time of the call or that you are a tax-exempt
nonprofit organization. In addition, your response should specify the
actions that you are taking to ensure that you do not violate the
Commission's rules governing prerecorded messages, as described above.
You may schedule a personal interview at the nearest Commission field
office. These offices are located in: Atlanta, GA; Boston, MA; Chicago,
IL; Columbia, MD; Dallas, TX; Denver, CO; Detroit, MI; Kansas City, MO;
Los Angeles, CA; New Orleans, LA; New York, NY; Philadelphia, PA; San
Diego, CA; San Francisco, CA; Seattle, WA; and Tampa, FL. 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 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-08-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 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 complaint at issue in this citation. Within the
complaint is the telephone number 281-550-8478, which your business
utilized during the time period at issue.
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)(3).
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)(13).
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)(4); 47 C.F.R.S: 64.1200(f)(12).
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)(4)
47 U.S.C. S: 227(a)(4); 47 C.F.R. S: 64.1200(f)(12).
Prior express invitation or permission to call a number contained on the
National Do-Not-Call Registry must be evidenced by a signed, written
agreement between a consumer and seller. The agreement must include both
the consumer's consent to be called by the particular seller and the
telephone number to which such calls may be placed. 47 C.F.R. S:
64.1200(c)(2)(ii).
An "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, 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).
47 C.F.R. S: 64.1200(c)(2)(iii). A "personal relationship" exists if the
recipient of the call is a "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.
See 47 C.F.R. S: 1.80(b)(3).
Federal Communications Commission
1
2
Federal Communications Commission
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554