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April 15, 2009
VIA CERTIFIED MAIL AND REGULAR MAIL
RETURN RECEIPT REQUESTED
Attn: Dale Gilman, President
Mark Persquare, Owner
2837 Fowler Street
Fort Myers, FL 33901
Re: File No. EB-09-TC-298
Dear Messrs. Gilman and Persquare:
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, made to telephone
lines that are contained in the National Do-Not-Call Registry. These
complaints indicate 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 starting no later than 31 days after a number is placed on
the National Do-Not-Call Registry. 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. Do-not-call registrations must be honored indefinitely, or until
either the consumer cancels the registration or the database administrator
removes the telephone number from the National Do-Not-Call Registry. 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
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 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
Telecommunications Consumers Division
Federal Communications Commission
445-12th Street, S.W., Rm. 4-C222
Washington, D.C. 20554
Reference File No. EB-09-TC-298 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. S: 1001.
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 at issue in this citation. Within the
complaint is the telephone number 239-936-2571, which your business
utilized during the time period at issue.
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:
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.
47 C.F.R. S: 64.1200(c)(2).
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
Federal Communications Commission
Federal Communications Commission
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554