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                FEDERAL COMMUNICATIONS COMMISSION
                     WASHINGTON, D.C. 20554

                        DECEMBER 26, 2000


Kevin Katz
President
Fax.com, Inc.
120 Columbia Street
Aliso Viejo, California  92656                                 

      RE:  EB-00-TC-179

Dear Mr. Katz: 

     This is an official CITATION, issued pursuant to section 
503(b)(5) of the Communications Act of 1934, as amended 
(Communications Act), for possible violations of the Telephone 
Consumer Protection Act of 19911 (TCPA) and the Federal 
Communications Commission's rules that implement that Act.2

     It has come to our attention that your company recently 
transmitted to telephone facsimile machines unsolicited 
advertisements for products, goods, or services offered by 
Colorjet, Inc. (see attachments).  Pursuant to the TCPA and the 
Commission's Rules, it is unlawful to use a ``telephone facsimile 
machine, computer, or other device to send an unsolicited 
advertisement to a telephone facsimile machine.''3  The term 
``unsolicited advertisement'' is defined in the TCPA and the 
Commission's rules as ``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.''4  The Commission has specified that 
an established business relationship between a fax sender and 
recipient constitutes prior express invitation or permission to 
send a facsimile advertisement.5  Mere distribution or 
publication of a fax number, however, does not establish consent 
to receive advertisements by fax.6 
       
     Although entities that merely transmit facsimile messages on 
behalf of others are not liable for compliance with the 
prohibition on faxing unsolicited advertisements,7 the exemption 
from liability does not exist when a fax transmitter has ``'a 
high degree of involvement or actual notice of an illegal use and 
[has] fail[ed] to take steps to prevent such transmissions.'''8  
Accordingly, fax transmitters do not enjoy an absolute exemption 
from liability under the TCPA and the Commission's Rules. 

     This citation serves as notice that the unsolicited 
facsimile advertisements sent by Colorjet, Inc. and transmitted 
by your company violate the TCPA and the Commission's Rules.  The 
Commission may assess to your company monetary forfeitures not to 
exceed $11,000 for each subsequent violation if (1) your company 
has been highly involved on behalf of the sender of any 
unsolicited facsimile advertisements, or (2) your company 
continues to transmit facsimile advertisements for Colorjet, Inc. 
without taking steps to ensure that the sender has obtained 
permission from recipients to fax the advertisements.

     Pursuant to section 503(b)(5) of the Communications Act, you 
may request a personal interview at the Commission's Field Office 
nearest to your place of business.  The nearest office appears to 
be the Los Angeles Office at Cerritos Corporate Tower, 18000 
Studebaker Road, Room 660, Cerritos, California  90703-3130.  You 
may contact the Los Angeles field office by telephone at 562-865-
0598.  You must schedule this interview to take place within 21 
days of the date of this citation.  Alternatively, you may submit 
a written statement to the following address within 21 days of 
the date of this citation:

               Kurt A. Schroeder
               Deputy Chief
               Telecommunications Consumers Division
                Enforcement Bureau
               Federal Communications Commission
               445 - 12th Street, S.W.
               Washington, D.C.  20554 

Please reference EB-00-TC-179 when corresponding with the 
Commission.

     If you choose to submit a written statement, you should 
discuss in detail your company's involvement in faxing 
advertisements on behalf of Colorjet, Inc., including any 
specific arrangements under which you transmit their 
advertisements.  Please provide copies of any contracts or 
agreements that memorialize the terms and conditions under which 
you fax for Colorjet, Inc.  You should also answer the following 
questions: 

     1.   Has your company had any control over or involvement in 
       determining the content of advertisements transmitted by 
       facsimile on behalf of Colorjet, Inc. or any other 
       entities on whose behalf you transmit advertisements by 
       facsimile?  Please describe such control or involvement 
       in detail.  

     2.   Who provided, compiled, or generated the distribution 
       list(s) of telephone facsimile numbers that your company 
       has used to transmit advertisements on behalf of 
       Colorjet, Inc. or any other entities on whose behalf you 
       transmit advertisements by facsimile?  

     3.   If your company has been involved in any way in 
       providing, compiling, generating, or editing the 
       distribution list(s) of telephone facsimile numbers that 
       your company has used to transmit advertisements of 
       behalf of Colorjet, Inc. or any other entities on whose 
       behalf you transmit advertisements by facsimile, describe 
       in detail the process by which your company produces or 
       participates in the generation of such list(s).  Does 
       your company employ or compensate any individuals or 
       entities outside the company, including any tax-exempt 
       nonprofit organizations, for any service, activity, 
       assistance, or facilities used in connection with your 
       company's providing, compiling, generating, or editing of 
       such list(s)?  Please describe such arrangements in 
       detail. 

     4.   If your company has been involved in any way in 
       providing, compiling, generating, or editing the 
       distribution list(s) of telephone facsimile numbers that 
       your company has used to transmit advertisements of 
       behalf of Colorjet, Inc. or any other entities on whose 
       behalf you transmit advertisements by facsimile, what 
       steps has your company taken to ensure that the telephone 
       facsimile numbers belong to individuals or entities who 
       have agreed, by explicit consent or by virtue of an 
       established business relationship with the advertiser, to 
       receive the advertisement?  Please describe in detail the 
       manner in which you record consumers' consent or the 
       existence of an established business relationship and 
       provide copies of any written record-keeping policies 
       with respect to maintaining evidence of such consent or 
       business relationship. 

     5.   Does your company advertise its fax transmittal 
       services, and, if so, by what means?  Please provide 
       copies of all print, audio, and video materials that have 
       been used within the past year to advertise your 
       company's fax transmittal services.  For each 
       advertisement, list the media in which the advertisement 
       appeared and the date(s) of such appearance(s).

     Under the Privacy Act of 1974, 5 U.S.C.  552(a)(e)(3), we 
are informing you that the Commission's staff will use all 
relevant material information before it to determine what, if 
any, enforcement action is required to ensure your compliance 
with the TCPA and the Commission's rules.  This will include any 
information that you disclose in your interview or written 
statement.  Please be advised that if you choose not to respond 
to this citation and a Notice of Forfeiture is issued, your 
unresponsiveness will be considered in our assessment of a 
forfeiture amount.

     You should also be aware that 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.  1001.

     Thank you in advance for your anticipated cooperation.

                              Sincerely, 



                              Kurt A. Schroeder
                              Deputy Chief
                              Telecommunications Consumers 
                         Division
                              Enforcement Bureau
                              Federal Communications Commission

Enclosures

_________________________

1    Pub.L. No. 102-243, 105 Stat. 2394-2402 (1991) (codified at 
47 U.S.C.  227)  
2
     47 C.F.R.  64.1200.
 
3    47 U.S.C.  227(b)(1)(C); 47 C.F.R.  64.1200(a)(3).

4    47 U.S.C.  227(a)(4); 47 C.F.R.  64.1200(f)(5).
 
5    Rules and Regulations Implementing the Telephone Consumer 
Protection Act of 1991, Report and Order, 7 FCC Rcd 8752, 8779 n. 
87 (1992) (TCPA Report and Order); Rules and Regulations 
Implementing the Telephone Consumer Protection Act of 1991, 
Memorandum Opinion and Order, 10 FCC Rcd 12391, 12408 (1995) 
(TCPA Memorandum Opinion and Order).
6
     TCPA Memorandum Opinion and Order, 10 FCC Rcd 12391, 12408. 

7    Id. at 12407. 

8    TCPA Report and Order, 7 FCC Rcd 8752, 8780 (1992) (quoting 
Use of Common Carriers, 2 FCC Rcd 2819, 2820 (1987).)