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January 12, 2012
VIA FIRST CLASS MAIL AND CERTIFIED MAIL,
RETURN RECEIPT REQUESTED
National Capital Exchange
Attn: Beau Pennington, President
408 Magazine Street, #408
New Orleans, LA 70130
Beau Pennington
dba National Capital Exchange
400 Magazine Street, Apt. 408
New Orleans, LA 70130-2453
National Capital Exchange
Attn: Rick Camarena
P.O. Box 129
Gulfport, MS 39502
RE: EB-11-TC-132
Dear Mr. Pennington and Mr. Camarena:
This is an official CITATION, issued by the Federal Communications
Commission (Commission or FCC) pursuant to section 503(b)(5) of the
Communications Act of 1934, as amended (Communications Act or Act), 47
U.S.C. S: 503(b)(5), for violations of the Act and the Commission's rules
that govern telephone solicitations, prerecorded and autodialed telephone
calls, and facsimile or "fax" transmissions. You are hereby on notice that
if you subsequently engage in any conduct of the type described in this
citation, including Attachment A hereto, in violation of section 227 of
the Act or sections 64.1200, 64.1601(e), or 68.318 of the Commission's
rules, you and your company may be subject to further legal action,
including monetary fines (forfeitures).
Based on the record developed in this case, the Enforcement Bureau, acting
through its delegated authority, finds that National Capital Exchange
initiated, or caused to be initiated, one or more calls, or sent, or
caused to be sent, one or more messages and/or faxes in violation of
section 227 of the Communications Act and the Commission's related rules.
In this regard, one or more complaints have been filed against you or your
company for violations of section 227 of the Act and/or our rules. Copies
of the complaints are attached as Attachment C to this citation. For your
convenience, the violations asserted in the complaints are checked below.
Once you have identified the violation(s), proceed to the associated
section(s) of Attachment A (Telephone Consumer Protection Act Violations)
to obtain the legal requirements related to each violation and then read
the section titled "Responding to the Citation," below, if you wish to
respond. Because, future violations by you or your company of the type
identified in Attachment A could result in fines, we encourage you to
familiarize yourself with the other sections of Attachment A so that you
or your company can take appropriate steps to ensure compliance with the
Act and our rules.
FACSIMILE VIOLATIONS
* Unsolicited Fax Advertisement (See Attachment A, section I(A) - page
1)
* Incomplete Fax Header (See Attachment A, section I(B) - page 3)
* Insufficient Opt-Out Notice (See Attachment A, section I(C) - page 4)
* Opt-Out Request Not Honored (See Attachment A, section I(D) - page 5)
PRERECORDED AND AUTODIALED CALL VIOLATIONS
* Prerecorded or Autodialed Call to a Cell Phone, Emergency Line, Health
Care Facility, or Toll-Free Line (See Attachment A, section II(A) -
page 6)
* Prerecorded Call to a Residential Line (See Attachment A, section
II(B) - page 6)
* Prerecorded Identification Not Provided (See Attachment A, section
II(C) - page 8)
* Prerecorded Line Seizure (See Attachment A, section II(D) - page 8)
* Business Line Seizure (See Attachment A, section II(E) -page 8)
DO-NOT-CALL VIOLATIONS
* National Do-Not-Call (See Attachment A, section III(A) - page 8)
* Company-Specific Do-Not-Call (See Attachment A, section III(B) - page
10)
TIME OF DAY VIOLATION (See Attachment A, section IV - page 11)
CALLER IDENTIFICATION VIOLATION (See Attachment A, section V - page 12)
If, after receipt of this citation, you or your company again violates
section 227 of the Act or sections 64.1200, 64.1601(e), or 68.318 of the
Commission's rules in any manner or violates section 1.17 of our rules
(discussed below) when responding to this citation, the Commission may
impose monetary forfeitures not to exceed $16,000 for each such violation
or each day of a continuing violation.
RESPONDING TO THE CITATION
You may respond to this citation within 30 days from the date of this
letter either through (1) a written statement, (2) a teleconference
interview with the Commission's Telecommunications Consumers Division in
Washington, DC or (3) a personal interview at the Commission Field Office
nearest to your place of business. Your response should specify the
actions that you are taking to ensure that you do not violate the
Communications Act or the Commission's rules governing TCPA violations, as
described herein.
If you would like to arrange a teleconference or personal interview,
please contact Al McCloud at (202) 418-2499. Such teleconference or
interview must take place within 30 days of the date of this citation.
If you would like to submit a written response, including any supporting
documentation, you must send the response within 30 days of the date of
this citation to the address below.
Richard A. Hindman, Chief
Telecommunications Consumers Division
Enforcement Bureau
Federal Communications Commission
445 12th Street, S.W., Rm. 4-C224
Washington, D.C. 20554
Reference EB-11-TC-132 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 business 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).
If you choose to respond to this citation, be advised that it is a
violation of section 1.17 of the Commission's rules (47 C.F.R. S: 1.17)
for any person or a staff member of that person to make any false or
misleading written or oral statement of fact. Specifically, no person
shall:
(1) In any written or oral statement of fact, intentionally provide
material factual information that is incorrect or intentionally omit
material information that is necessary to prevent any material factual
statement that is made from being incorrect or misleading; and
(2) In any written statement of fact, provide material factual information
that is incorrect or omit material information that is necessary to
prevent any material factual statement that is made from being incorrect
or misleading without a reasonable basis for believing that any such
material factual statement is correct and not misleading.
Further, 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.
If you or your company violates section 1.17 of the Commission's rules or
the criminal statute referenced above, you may be subject to further legal
action, including monetary fines pursuant to section 503 of the
Communications Act.
Under the Privacy Act of 1974, 5 U.S.C. S: 552a(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.
Thank you in advance for your anticipated cooperation.
Sincerely,
Richard A. Hindman, Chief
Telecommunications Consumers Division
Enforcement Bureau
Federal Communications Commission
Enclosures
47 U.S.C. S: 227; 47 C.F.R. S:S: 64.1200, 64.1601(e), 68.318. 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
rules restrict a variety of practices that are associated with telephone
solicitation and the use of the telephone network to deliver unsolicited
advertisements or prerecorded and autodialed telephone calls.
This citation is being issued to the company named above and includes all
d/b/a entities and any other entity names used by the company as well as
its owners, principals, and officers. Accordingly, all references in this
citation to the named company also include all d/b/a entities and any
other entity names used by the company and its owners, principals, and
officers.
3
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554