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April 1, 2009
VIA CERTIFIED MAIL AND REGULAR MAIL
RETURN RECEIPT REQUESTED
Turn Key Solutions
Attn: Efran Leyza, President and CEO
Nate Villerial
4920 W Thunderbird Road
Phoenix, AZ 85306
Re: File No. EB-09-TC-271
Dear Mr. Leyza and Mr. Villerial:
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 are consumer complaints regarding telemarketing calls that your
company or an entity acting on behalf of your company, acting under your
direction, made to residential telephone lines despite previous
do-not-call requests by members of the households. These complaints
indicate that you and your company have violated the Commission's
requirements regarding telemarketing calls in 47 C.F.R. S: 64.1200(d).
Section 64.1200(d) of the Commission's rules requires entities that make
telemarketing calls to residential telephone subscribers to follow certain
procedures to ensure that the subscribers are able to stop such calls.
Specifically, entities that make telemarketing calls must (1) develop
written policies for maintaining a do-not-call list and make such written
policies available upon demand; (2) inform and train their personnel
engaged in any aspect of telemarketing about the existence and use of the
do-not-call list; (3) place consumers who request not to receive
telemarketing calls on the do-not-call list; and (4) honor each
do-not-call request within a reasonable time from the date of the request,
which may not exceed thirty (30) days, for five years from the time the
request is made. In addition, the Commission has found that it is unlawful
to call a residential telephone line to deliver a telemarketing call if
any member of the household has made a do-not-call request.
Under the Commission's rules, a "telemarketing" call 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."
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 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 are exempt from the telephone solicitation rules, that you
downloaded and used the National Do-Not-Call Registry in compliance with
our rules but the person's telephone number was not on that version of the
Registry, or that the calls were made in error and should be covered by
the Commission's safe harbor provisions, 47 C.F.R. S: 64.1200(c)(2)(i). In
addition, 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.
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 File No. EB-09-TC-271 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 one complaint at issue in this citation. Within the
complaint is the telephone number 312-380-5416, which your business
utilized during the time period at issue.
See attached complaint(s).
47 C.F.R. S: 64.1200(d).
Consumer.Net v. AT&T, Order, 15 FCC Rcd 281, 298 (1999).
47 C.F.R. S: 64.1200(f)(10).
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).
See 2003 Order, 18 FCC Rcd at 14042-49; 47 C.F.R. S:
64.1200(f)(12)(i)-(iii) (exceptions to definition of "telephone
solicitation").
Federal Communications Commission
1
2
Federal Communications Commission
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554