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Federal Communications Commission DA 18-1291
Before the
Federal Communications Commission
Washington, DC 20554
In the Matter of )
)
Emanuel “Manny” Hernandez; ) File No.: EB-TCD-17-00024357
Click Cash Marketing, LLC; and )
Rock Solid Traffic )
CITATION AND ORDER
UNAUTHORIZED TEXT MESSAGE VIOLATIONS
Adopted: December 21, 2018 Released: December 21, 2018
By the Division Chief, Telecommunications Consumers Division :
I. INTRODUCTION
1. The Telecommunications Consumers Division (Division) of the Federal Communications
Commission’s (Commission’s) Enforcement Bureau has identified Emanuel “Manny” Hernandez as the
originator of unsolicited text messages (robotexts). This CITATION AND ORDER (Citation) notifies
Mr. Hernandez, Click Cash Marketing, LLC and Rock Solid Traffic (collectively, Hernandez), that
Hernandez violated the law by sending telemarketing text messages to numbers on the Do-Not-Call
registry (DNC). We therefore direct Hernandez to comply with the Communications Act of 1934, as
amended (Communications Act or Act), including the Telephone Consumer Protection Act (TCPA), and
the Commission’s rules (Rules), which prohibit making calls to residential consumers who list their
numbers on the DNC. If, after receipt of this Citation, Hernandez fails to comply with these laws, he may
be liable for significant fines.
2. Notice of Duty to Comply With Law: We issue this Citation pursuant to Section
503(b)(5) of the Communications Act,1 which states that the Commission may not impose monetary
forfeitures against non-regulatees who violate the Act or the Rules unless and until: (a) the Commission
issues a citation to the violator; (b) the Commission provides the violator a reasonable opportunity to
respond; and (c) the violator subsequently engages in conduct described in the citation.2
Accordingly,
Hernandez is hereby on notice that he (and any entity through which he does business) must comply with
Section 227 of the Act and Section 64.1200 of the Rules. If Hernandez subsequently engages in any
conduct of the type this Citation describes—violation of the Act or Rules that govern solicitations to
telephone numbers registered with the DNC3
—Hernandez may be subject to civil penalties, including but
not limited to substantial monetary forfeitures.4
In assessing such forfeitures, the Commission may
1
47 U.S.C. § 503(b)(5).
2
See id.
3 See 47 U.S.C. § 227(c); 47 CFR § 64.1200(c)(2). Section 227 was added to the Communications Act by the
Telephone Consumer Protection Act of 1991, Pub. L. No. 102-243, 105 Stat. 2394 (codified at 47 U.S.C. § 227), 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 or autodialed telephone calls.
4
This Citation is being issued to the individual, Mr. Hernandez, and the entities through which he conducted
business, Click Cash Marketing, LLC and Rock Solid Traffic. Mr. Hernandez terminated Click Cash Marketing,
LLC corporate registration in summer 2016, several months prior to the violations in this Citation. See infra para. 5.
Rock Solid Traffic, a lead generation tool created by Mr. Hernandez, appears to have no legal existence. See id.
(continued…)
Federal Communications Commission DA 18-1291
5
consider both the conduct that led to this Citation and the conduct following it.
II. BACKGROUND
3. The DNC is a list that the government maintains of people who have elected to not
6
receive telephone solicitations. It is illegal for persons or entities, including advertisers and marketers, to
make marketing calls to telephone numbers listed on the DNC. This prohibition includes both voice calls
and text messages.7 The Commission has held that the prohibitions in the TCPA and the Rules
encompass “both voice calls and text calls to wireless numbers including, for example, short message
service (SMS) calls . . . .”8 Text messaging has become a routine form of communication. According to
one report, American consumers sent 1.66 trillion SMS messages in 2016.9 Unscrupulous marketers,
fraudsters, and other nefarious actors inundate consumers with unwanted text messages to perpetuate
schemes, in violation of the TCPA, and often causing great harm.10
4. The evidence indicates that Hernandez has flooded consumers with text messages that
advertise get-rich-quick schemes. As explained in greater detail below, in October 2016 alone,
Hernandez sent telemarketing text messages to wireless phones of consumers, many of whom had listed
their numbers on the DNC. 11
Hernandez’s robotexting campaigns violate the Communications Act and
the Rules.12
A. Hernandez’s Text Messaging Business
5. Mr. Hernandez is the founder and CEO of Click Cash Marketing, LLC,13 and describes
himself as a “Direct Response Marketer and Successful Entrepreneur with over 8 Years Experience
(Continued from previous page)
Neither Click Cash Marketing, LLC nor Rock Solid Traffic are legal entities; therefore, we treat both as mere
business names of Mr. Hernandez and hold each jointly and several liable with Mr. Hernandez. See infra para. 13.
5 See S. Rep. No. 95-580, 95th Cong., 1st Sess. at 9 (1977) (explaining that a person or entity that has been issued a
citation by the Commission that thereafter engages in the conduct for which the citation was issued, the subsequent
notice of apparent liability “would attach not only for the conduct occurring subsequently but also for the conduct
for which the citation was originally sent”) (emphasis added); see also 47 U.S.C. § 503(b)(2)(D) (“In determining
the amount of such a forfeiture penalty, the Commission or its designee shall take into account the nature,
circumstances, extent, and gravity of the violation and, whit respect to the violator, the degree of culpability, any
history of prior offenses, ability to pay, and such other matters as justice may require.”).
6
See 47 CFR § 64.1200(c)(2).
7
See Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02-278,
Declaratory Ruling and Order, 30 FCC Rcd 7961, 8020, para. 120 (2015) (2015 TCPA Order); Rules and
Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02-278, Report and
Order, 18 FCC Rcd 14014, 14115, para. 165 (2003) (2003 TCPA Order).
8 2003 TCPA Order, 18 FCC Rcd at 14115, para. 165. The Commission affirmed this on multiple subsequent
occasions. See Rules and Regulations Implementing the Controlling the Assault of Non-Solicited Pornography and
Marketing Act of 2003, 19 FCC Rcd 15927, 15931, 15934, paras. 8, 17 (2004); 2015 TCPA Order, 30 FCC Rcd at
8016-17, para. 107.
9 CTIA, Annual Wireless Industry Survey, https://www.ctia.org/industry-data/ctia-annual-wireless-industry-survey
(last visited Nov. 27, 2017). This does not include the 277.9 billion multimedia messaging service (MMS) messages
sent during the same time period. Id. Whereas SMS is text only and limited to 160 characters, MMS enables the
user to send a variety of media, such as pictures and videos, as messages.
10 This type of text-based marketing is sometimes called “text spam” or “robotexting.”
11 The issuance of this Citation is timely because the Act only provides a statute of limitations for forfeitures. See 47
U.S.C. § 503(b)(6)(B).
12 47 U.S.C. § 227(c); 47 CFR § 64.1200(c)(2).
13 Click Cash Marketing, About, http://clickcashmarketing.com/about-us/ (last visited Aug. 3, 2018).
2
Federal Communications Commission DA 18-1291
and counterfeit goods sales. All of the complaints stated that the consumer did not request or authorize
the text messages. Each complainant attested that his or her wireless number was used for a residential
purpose. Division staff traced some of the text messages back to , an Internet-based commercial text
messaging platform, that then identified the entities originating the text messages.19 One such entity was
Click Cash Marketing, LLC. The Division then subpoenaed the text messaging platform provider for all
of Hernandez’s text message records for October 2016. Division staff cross-referenced seven of the
complaints with the October message detail records (MDRs). The texts that consumers complained about
were advertisements for the following get-rich-quick schemes:
Bobby Get a 9,124 Check a WEek [sic] Rply HOW to start Stop 2 Stop.20
21
Christopher make 9,503 Month Send SURE to find out End to Stop.
Suzanne make 9,948 per Week from your phone Send YEA for details type Stop to End.22
7. Division staff compared the seven complaints received by the Commission to the DNC.
23
Six of the seven complaints involved residential wireless numbers listed on the registry.
III. APPLICABLE LAW AND VIOLATIONS
8. Based on the evidence gathered in the investigation, the Division finds that Hernandez
violated the Communications Act and the Rules. Specifically, we find that Hernandez violated provisions
of the TCPA and the Commission’s rules that prohibit making calls to residential numbers listed on the
DNC. 24
A. Prohibitions on Calls to Numbers Registered on the DNC
9. In 2003, the FCC revised its TCPA rules to establish, in coordination with the Federal
Trade Commission (FTC), a national DNC.25 By revising its TCPA rules and establishing the DNC, the
Commission provided consumers with options for avoiding unwanted telephone solicitations including
text messages. The Rules state that telemarketers, subject to certain exceptions,26 are prohibited from
initiating any telephone solicitation to “[a] residential telephone subscriber who has registered his or her
telephone number on the national do-not-call registry of persons who do not wish to receive telephone
solicitations that is maintained by the Federal Government.”27 The Rules define a “telephone solicitation”
as the “initiation of a telephone call or message for the purpose of encouraging the purchase or rental of,
19 This text messaging app allows its customers to send thousands of text messages as part of marketing campaigns
or other user engagement activities. , SMS Overview, https://www .com/sms-api/ (last visited Oct. 12,
2018) (Text Messaging Platform Website).
20 Zendesk Complaint #1294718 (Oct. 31, 2016).
21 Zendesk Complaint #1273210 (Oct. 18, 2016).
22 Zendesk Complaint #1285716 (Oct. 25, 2016).
23 See Attachment A (containing complaints received by the Commission).
24 See 47 U.S.C. § 227(c); 47 CFR § 64.1200(c)(2).
25 See 2003 TCPA Order, 18 FCC Rcd at 14034, para. 28.
26 The exceptions include where the telemarketer has an established business relationship with the consumer, a
personal relationship with the consumer, prior express permission to call the consumer, or is calling on behalf of a
tax-exempt nonprofit organization. See id. at 14042-45, paras. 42-47; 47 CFR § 64.1200(f)(14)(i)-(iii). There is
also a safe-harbor for telemarketers if they can demonstrate that any violations were the result of an error. Id. at
14040, para. 38; 47 CFR § 64.1200(c)(2)(i)-(iii).
27 47 CFR § 64.1200(c)(2). See also 2003 TCPA Order, 18 FCC Rcd at 14034, para. 28.
4
Federal Communications Commission DA 18-1291
or investment in, property, goods, or services, which is transmitted to any person,” subject to certain
exceptions.28
10. The Rules apply to both interstate and intrastate calls29 and cover both wireline and
wireless residential subscribers.30 The DNC prohibitions apply to voice calls and text messages. In
numerous rulings beginning in 2003, the Commission has held that text messages are calls covered by the
TCPA.31 The TCPA and Commission’s Rules encompass “both voice calls and text calls to wireless
numbers including, for example, short message service (SMS) calls, provided the call is made to a
telephone number assigned to such service.”32 This was reaffirmed most recently in the 2015 TCPA
Order.33
B. Violations of the TCPA
11. Division staff reviewed all complaints related to unwanted text messages received by the
34
Commission during October 2016. Seven of the complaints traced back to Hernandez—six of which
involved numbers listed on the DNC.35 These text messages constituted telephone solicitations as defined
by the TCPA.36 Hernandez’s texts were sent for the purpose of encouraging people to purchase
membership into MLM businesses and other get-rich-quick schemes.37 None of these complainants gave
permission for Hernandez to send them text messages, nor did they have an established business
relationship with Hernandez. Additionally, Click Cash Marketing, LLC is not a tax-exempt nonprofit and
all of the advertised entities were for-profit MLM businesses. Thus, none of the DNC exceptions apply.38
Furthermore, each complainant attested that he or she used the wireless number for residential purposes.39
Hernandez’s text messages, therefore, violated the prohibition against telephone solicitations to telephone
numbers registered on the DNC.
28 47 CFR § 64.1200(f)(14). See supra note 26.
29 2003 TCPA Order, 18 FCC Rcd at 14063, paras. 80-81. See also 47 U.S.C. § 152(b).
30 There is a presumption that “wireless subscribers who ask to be put on the national do-not-call list [are
considered] to be ‘residential subscribers.’” 2003 TCPA Order, 18 FCC Rcd at 14039, para. 36 (stating that such
presumption “may require a complaining wireless subscriber to provide further proof of the validity of that
presumption should we need to take enforcement action”). The Commission determined that interpreting
“residential” to encompass wireless subscribers was “consistent with the overall intent of the TCPA to allow
wireless subscribers to benefit from the full range of TCPA protections.” Id.
31 2003 TCPA Order, 18 FCC Rcd at 14115, para. 165. See supra para. 3, note 8.
32 2003 TCPA Order, 18 FCC Rcd at 14115, para. 165.
33 2015 TCPA Order, 30 FCC Rcd at 8016-17, para. 107. The Commission rejected arguments that text messages
should be treated like instant messages or e-mails. Id. Additionally, the Enforcement Bureau released an
Enforcement Advisory putting robotexters on notice that they must comply with the TCPA. Robotext Consumer
Protection: Text Message Senders Must Comply with the Telephone Consumer Protection Act, Enforcement
Advisory, DA 16-1299 (EB 2016). See Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037, 1041-42 (9th
Cir. 2017); Murphy v. DCI Biologicals Orlando, LLC, 797 F.3d 1302, 1305 (11th Cir. 2015); Keating v. Peterson’s
Nelnet, LLC, 615 Fed.Appx. 365, 370-71 (6th Cir. 2015); Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 954
(9th Cir. 2009); Hickey v. Voxernet LLC, 887 F.Supp.2d 1125, 1129 (W.D. Wash 2012); Lozano v. Twentieth
Century Fox Film Corp., 702 F.Supp.2d 999, 1009 (N.D. Ill. 2010).
34 See supra para. 6.
35 See supra paras. 6-7.
36 See 47 U.S.C. § 227(a)(4).
37 See supra para. 5.
38 See id.
39 See supra para. 6.
5
Federal Communications Commission DA 18-1291
12. Based on the record developed in this case, we find that Hernandez made text messages
to telephone numbers listed on the DNC in violation of Section 227(c) of the Communications Act and
Section 64.1200(c)(2) of the Rules.40
C. Joint and Several Liability
13. We attribute the violations found in this Citation to Mr. Hernandez in his personal
capacity and jointly and severally with Click Cash Marketing, LLC and Rock Solid Traffic. While Mr.
Hernandez sent the text messages from a account registered to Click Cash Marketing, LLC and
interacted with customers using the Rock Solid Traffic name,41 neither were legal entities at the time of
the violations. Mr. Hernandez terminated Click Cash Marketing, LLC on June 20, 2016—four months
prior to the violations in this Citation.42 Likewise, Rock Solid Traffic is not a formal legal entity—it has
no corporate, partnership, or other business entity filings.43 Since neither Click Cash Marketing, LLC nor
Rock Solid Traffic are legal entities, Mr. Hernandez is not entitled to the protection of the corporate form
and is personally liable for the violations.44
Additionally, we treat Click Cash Marketing, LLC and Rock
Solid Traffic as mere business names of Mr. Hernandez and hold each jointly and severally responsible
with Mr. Hernandez, to the extent they have any independent legal existence, for the violations found in
this Citation.
IV. OPPORTUNITY TO RESPOND TO THIS CITATION
14. Hernandez may respond to this Citation within 30 calendar days from the release date of
this Citation by a personal interview at the Commission Field Office nearest to Hernandez’s place of
business.45 Alternatively, Hernandez may elect to respond by a written statement or a teleconference with
the nearest Commission Field Office or Commission Headquarters in Washington, D.C. The
Commission Field Office nearest Hernandez is located in Atlanta, GA.
15. If Hernandez requests a teleconference or personal interview, contact Kristi Thompson at
(202) 418-1318. We note that such teleconference or interview must take place within 30 calendar days
of the release date of this Citation. If Hernandez prefers to submit a written response with supporting
documentation, send the response within 30 calendar days of the release date of this Citation to the
contact and address provided in paragraph below.
16. All written communications should be sent to the address below.
40 While we recognize that Hernandez may have made more texts violating the TCPA’s DNC rules, we only cite
Hernandez for those text messages that we verified from complaints submitted to the Commission. If Hernandez
continues to violate the TCPA and our rules, we will consider all illegal text messages made by Hernandez for
purposes of imposing a forfeiture.
41 See supra para. 5.
42 See id.
43 See id.
44 See Labadie Coal Co. v. Black, 672 F.2d. 92, 95 (D.C. Cir. 1982) (noting that piercing the corporate veil analysis
to find personal liability is only relevant “if it is established that the corporate entity itself exists”). See also Adrian
Abramovich, Marketing Strategy Leaders, Inc., and Marketing Leaders, Inc., Notice of Apparent Liability, 32 FCC
Rcd 5418, 5427-28 para. 27 (2017).
45 See 47 U.S.C. § 503(B)(5) (stating that a citation notice must give “reasonable opportunity for a personal
interview”).
6
Federal Communications Commission DA 18-1291
Kristi Thompson, Chief
Telecommunications Consumers Division
Enforcement Bureau
Federal Communications Commission
445 12th Street, SW, Rm. 4-C220
Washington, DC 20554
Re: EB-TCD-17-00024357
17. Upon request, the Commission will make reasonable accommodations for persons with
disabilities. If applicable, Hernandez should provide a description of the accommodation required, and
include as much detail as possible, and also provide a telephone number and other contact information.
Hernandez should allow at least five business days advance notice; last minute requests will be accepted,
but may be impossible to fill. Hernandez should send an e-mail to fcc504@fcc.gov or call the FCC’s
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).
18. We advise Hernandez that it is a violation of Section 1.17 of the Rules46 for any person to
make any false or misleading written or oral statement of fact to the Commission. 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.
19. 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.47
20. Violations of Section 1.17 of the Rules or the criminal statute referenced above may
result in further legal action, including monetary forfeitures pursuant to Section 503 of the Act.48
21. Finally, we warn Hernandez that, under the Privacy Act of 1974,49 Commission staff will
use all relevant material information before it, including information disclosed in interviews or written
statements, to determine what, if any, enforcement action is required to ensure your compliance with the
Act and Rules.
V. FUTURE VIOLATIONS
22. If, after receipt of this Citation and the foregoing opportunity to respond, Hernandez
46 47 CFR § 1.17.
47 18 U.S.C. § 1001.
48 47 U.S.C. § 503(b).
49 5 U.S.C. § 552a(e)(3).
7
Federal Communications Commission DA 18-1291
again violates Section 227(c) of the Act and Sections 64.1200(c)(2) of the Rules by engaging in conduct
of the type described herein, the Commission may impose sanctions for each such violation. For
example, the Commission may impose monetary forfeitures of up to $19,639 per violation of Section
227.50 Further, as discussed above, the Commission may assess forfeitures on both the conduct that led to
this Citation and the conduct following it.51
VI. ORDERING CLAUSE
23. IT IS ORDERED that a copy of this Citation shall be sent by first class mail and
certified mail, return receipt requested, to Emanuel Hernandez, Click Cash Marketing, LLC, and Rock
Solid Traffic, and .
FEDERAL COMMUNICATIONS COMMISSION
Kristi Thompson
Division Chief
Telecommunications Consumers Division
Enforcement Bureau
50 47 CFR § 1.80. See Adjustment of Civil Monetary Penalties to Reflect Inflation, Order, DA 18-12, (Jan 5, 2018).
51 See supra para. 2.
8