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.

*****************************************************************



   November 5, 2008

   VIA CERTIFIED AND REGULAR MAIL

   RETURN RECEIPT REQUESTED

   Charles Zakarin

   dba American Automotive Equipment, Inc.

   195 Country Ridge Drive

   Port Chester, NY 10573-1071

   RE: EB-08-TC-6792

   Dear Mr. Zakarin:

   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, apparently sent one or more unsolicited advertisements to
   telephone facsimile machines in violation of Section 227(b)(1)(C) of the
   Communications Act, as described in the attached complaint(s).  Section
   227(b)(1)(C) 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."  As relevant here, an "unsolicited
   advertisement" is "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." 
   Mere distribution or publication of a fax number does not establish
   consent to receive advertisements by fax. Fax advertisements may be sent
   to recipients with whom the sender has an established business
   relationship, as long as the fax number was provided voluntarily by the
   recipient. An established business relationship is defined as a prior or
   existing relationship formed by a voluntary two-way communication between
   a person or entity and a business or residential subscriber with or
   without an exchange of consideration, based on a purchase, inquiry,
   application or transaction by that subscriber regarding products or
   services offered by such person or entity. This relationship must not have
   been previously terminated by either party. A fax advertisement may be
   sent to a recipient with whom the sender has an established business
   relationship only if the sender also:

   i. obtains the fax number directly from the recipient; or

   ii. obtains the fax number from the recipient's own directory,
       advertisement, or site on the Internet, unless the recipient has noted
       on such materials that it does not accept unsolicited advertisements
       at the fax number in question; or

   iii. has taken reasonable steps to verify that the recipient agreed to
        make the number available for public distribution, if obtained from a
        directory or other source of information compiled by a third party.

   Finally, in the event of a complaint or dispute, the burden rests with the
   fax sender to demonstrate that it either obtained prior express permission
   to send the facsimile advertisement or satisfied all the criteria
   necessary to invoke the established business relationship exemption.

   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
   occurring before September 2, 2008, and $16,000 for each such violation or
   each day of a continuing violation occurring on or after September 2,
   2008.

   You may respond to this citation within thirty (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, (2) a written statement,
   or (3) a teleconference interview with the Commission's Telecommunications
   Consumers Division in Washington, DC. 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.

   Please contact Delores Browder at (202) 418-2861 to arrange for an
   interview at the closest field office, if you wish to schedule a personal
   interview. You should schedule any interview to take place within thirty
   (30) days of the date of this letter. You should send any written
   statement within thirty (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-6792 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 fax advertising. 47 U.S.C. S: 64.1200(a)(3); Rules and
   Regulations Implementing the Telephone Consumer Protection Act of 1991 -
   Junk Fax Protection Act of 2005, Report and Order and Third Order on
   Reconsideration, 21 FCC Rcd 3787 (2006) (2006 TCPA Report and Order).

   We have attached one complaint at issue in this citation. The complaint
   addresses a facsimile advertisement that contains the telephone number
   800-431-3017, which your business utilized during the time period at
   issue.

   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)(3); 47
   C.F.R. S: 64.1200(f)(11). 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)(5); 47 C.F.R. S: 64.1200(f)(13) (defining "unsolicited
   advertisement" to specify that prior express invitation or permission may
   be "in writing or otherwise").

   See Rules and Regulations Implementing the Telephone Consumer Protection
   Act of 1991, Memorandum Opinion and Order, 10 FCC Rcd 12391, 12408-09
   (1995) (1995 TCPA Reconsideration Order); 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).

   47 U.S.C. S: 227(b)(1)(C); 47 C.F.R. 64.1200(a)(3)(ii).

   47 U.S.C. S: 227(a)(2); 47 C.F.R. 64.1200(f)(5); see also 2006 TCPA Report
   and Order, 21 FCC Rcd at 3797-3799.

   An inquiry about a store location or merely visiting a company website
   does not create an established business relationship; an inquiry must seek
   information about the products or services offered by the company. Once
   established, nonetheless, a business relationship will permit an entity to
   send facsimile advertisements until the recipient "terminates" the
   relationship by making a request not to receive future faxes. 2006 TCPA
   Report and Order, 21 FCC Rcd at 3798.

   If a valid EBR existed between the fax sender and recipient prior to July
   9, 2005, and the sender also possessed the facsimile number prior to July
   9, 2005, the sender may send the facsimile advertisements to that
   recipient without demonstrating how the number was obtained or verifying
   it was provided voluntarily by the recipient. 47 U.S.C. S:
   227(b)(1)(C)(iii); 47 C.F.R. S: 64.1200 (a)(ii)(C); see also 2006 TCPA
   Report and Order, 21 FCC Rcd at 3796.

   47 U.S.C. S: 227(b)(1)(C)(ii)(I); 47 C.F.R. S: 64.1200 (a)(ii)(A).

   47 U.S.C. S: 227(b)(1)(C)(ii)(II); 47 C.F.R. S: 64.1200 (a)(ii)(B).

   47 U.S.C. S: 227(b)(1)(C)(ii)(II); 47 C.F.R. S: 64.1200 (a)(ii)(B); see
   also 2006 TCPA Report and Order, 21 FCC Rcd at 3795 ("[I]f the sender
   obtains the number from sources of information compiled by third
   parties-e.g., membership directories, commercial databases, or internet
   listings-the sender must take reasonable steps to verify that the
   recipient consented to have the number listed, such as calling or emailing
   the recipient.").

   2006 TCPA Report and Order, 21 FCC Rcd at 3793-9, 3795, 3812.

   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) (forfeiture maximum set at $11,000 for violators who are not
   common carriers or other entities specifically designated in section 503
   of the Act); Amendment of Section 1.80(b) of the Commission's Rules and
   Adjustment of Forfeiture Maxima to Reflect Inflation, 19 FCC Rcd 10945
   (2004) (amendment of section 1.80(b) to reflect inflation left the
   forfeiture maximum for this type of violator at $11,000); Amendment of
   Section 1.80(b) of the Commission's Rules, Adjustment of Forfeiture Maxima
   to Reflect Inflation, FCC 08-154, rel. June 13, 2008 (amendment of section
   1.80(b) to reflect inflation increased the forfeiture maximum for this
   type of violator to $16,000, effective September 2, 2008).

   Federal Communications Commission

   2

   2

   Federal Communications Commission

                       FEDERAL COMMUNICATIONS COMMISSION

                            WASHINGTON, D.C.  20554