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October 31, 2008
VIA CERTIFIED MAIL AND REGULAR MAIL
RETURN RECEIPT REQUESTED
Kirkland Young, LLC
Attn: Paul Woliner
311 Lincoln Road Suite 204
Miami Beach, FL 33139
RE: File No. EB-08-TC-6722
Dear Mr. Woliner:
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 prerecorded messages that your
company, acting under your direction, has delivered to a residential
telephone line or lines. The 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:
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
(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
Additionally, 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
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,
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
Telecommunications Consumers Division
Federal Communications Commission
445-12th Street, S.W.
Washington, D.C. 20554
Reference EB-08-TC-6722 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 email@example.com or call the Consumer & Governmental Affairs
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,
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
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.
Thank you in advance for your anticipated cooperation.
Kurt A. Schroeder
Deputy Chief, Telecommunications Consumers Division
Federal Communications Commission
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 one complaint(s) at issue in this citation. Within the
complaint(s) is the telephone number 866-554-3890, 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:
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
(ii) To any person with whom the caller has an established business
(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
(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
47 C.F.R. S: 64.1200(f)(4)
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.
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
Federal Communications Commission
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554