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FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554
March 11, 2005
VIA CERTIFIED MAIL
RETURN RECEIPT REQUESTED
American Express Company
General Counsel's Office
Attn: Thomas J. Ryan, Group Counsel
200 Vesey Street
49th Floor
New York, NY 10285
Re: EB-04-TC-114
Dear Mr. Ryan:
This is an official CITATION, issued pursuant to section
503(b)(5) of the Communications Act of 1934, as amended (the
Communications Act), 47 U.S.C. § 503(b)(5), for violations of the
Federal Communications Commission's rules that govern telephone
solicitations and unsolicited advertisements.1 As explained
below, future violations of the Commission's rules in this regard
may subject your company to monetary forfeitures.
By letter dated July 2, 2004, the Telecommunications
Consumers Division of the Commission's Enforcement Bureau
notified you of 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, and provided you an opportunity to submit
information to demonstrate the lawfulness of those calls. You
responded by letters dated August 10, 2004, October 28, 2004,
November 1, 2004, and January 26, 2005.2 You do not dispute
making 53 such calls.3 You claim that the calls were made in
error and should be covered by the Commission's safe harbor
provisions, 47 C.F.R. § 64.1200(c)(2)(i). In order to qualify
for safe harbor protection, however, you must demonstrate that
the violative calls were the result of an error. Although you
briefly explain that the calls were due to an apparent failure by
American Express financial advisors' to scrub consumer phone
numbers against the National Do-Not-Call registry,4 you do not
provide any evidence explaining how the specific financial
advisors in question were permitted to make these calls and why
their calls should be considered ``errors'' under the rules.
Without such information, we do not have an evidentiary basis to
conclude that the calls were, in fact, due to "error."
Accordingly, in light of the insufficient information in the
record, we issue this citation.
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.''5 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
call6 or has an established business relationship7 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.8
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 no later than 31 days after a number is placed
on the National Do-Not-Call Registry,9 and for a period of no
less than five years. 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. 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 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. 10
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. 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.
The nearest Commission field office appears to be the New
York Office in New York, NY. 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 EB-04-TC-114 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. § 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. § 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 47 C.F.R. § 64.1200. A copy of these rules is enclosed for
your convenience.
2 Letters dated August 10, 2004, October 28, 2004, November 1,
2004, and January 26, 2005 from Thomas J. Ryan, American Express
Company's General Counsel's Office, to Kurt A. Schroeder, Deputy
Chief, Telecommunications Consumers Division, File No. EB-04-TC-
114 (``August 10, 2004 Letter'', ``October 28, 2004 Letter'',
``November 1, 2004 Letter'', and ``January 26, 2005 Letter'').
3 We have attached the 53 complaints on which this citation is
based. They are numbered as indicated in American Express
Company's, General Counsel's Office January 26, 2005 Letter. The
complaints are from the states of North Carolina, Arizona,
Colorado, Connecticut, Georgia, Illinois, Massachusetts,
Michigan, South Carolina, Maine, New Hampshire, New Jersey, New
York, Pennsylvania, Virginia, Ohio, and California.
4 January 26, 2005 Letter at 5 (``The complaints ... appear to
result from the erroneous omission of checking the consumer
telephone numbers against the National Do-Not-Call List.'').
5 47 U.S.C. § 227(a)(3); 47 C.F.R. § 64.1200(f)(9).
6 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. § 64.1200(c)(2)(ii).
7 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. § 64.1200(f)(3). 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.
§ 64.1200(f)(3)(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).
8 47 C.F.R. § 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.
§ 64.1200(f)(11).
9 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 14040, 14014, para. 38 (2003). The 3-month provision
applied to telephone solicitations made before January 1, 2005.
10 See 47 C.F.R. § 1.80(b)(3).