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FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554
APRIL
APRIL
12, 2000
Richard Rice, President
Patriot Diamond, Inc.
3471 N. Federal Highway
Suite 300
Fort Lauderdale, Florida 33306
RE: EB-00-TC-003
Dear Mr. Rice:
This is an official CITATION, issued pursuant to section
503(b)(5) of the Communications Act of 1934, as amended (the
Act), for 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 sent
unsolicited advertisements to a telephone facsimile machine (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
In addition to the violation identified above, it appears
that your company also has violated the provisions of the TCPA
and the Commission's Rules which require any person or entity who
sends a message via a telephone facsimile machine to clearly mark
``in a margin at the top or bottom of each transmitted page of
the message or on the first page of the transmission, the date
and time it is sent and an identification of the business, other
entity, or individual sending the message and the telephone
number of the sending machine or of such business, other entity,
or individual.''7
Please be advised that subsequent violations of the
Communications Act or of the Commission's Rules may result in the
imposition of monetary forfeitures not to exceed $11,000 for each
such violation or each day of a continuing violation.8
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 Miami Field Office at 2210 NW 82nd Avenue, Miami, Florida
33122. You can contact the Miami office by telephone at (305)
994-1642. You must request an interview 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
If you choose to submit a written statement, your written
statement should specify what actions have been taken to correct
the violation outlined above. Please reference EB-00-TC-003 when
corresponding with the Commission.
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). Both
the TCPA and the Commission's rules define ``telephone facsimile
machine'' as ``equipment which has the capacity to transcribe
text or images, or both, from paper into an electronic signal and
to transmit that signal over a regular telephone line, or to
transcribe text or images (or both) from an electronic signal
received over a regular telephone line onto paper.'' 47 U.S.C. �
227(a)(2); 47 C.F.R. � 64.1200(f)(2). The Commission has stated
that ``[f]ax modem boards are the functional equivalent of stand-
alone facsimile machines.'' Rules and Regulations Implementing
the Telephone Consumer Protection Act of 1991, Memorandum Opinion
and Order, 10 FCC Rcd 12391, 12405 (1995) (TCPA Memorandum
Opinion and Order).
4 47 U.S.C. � 227(a)(4); 47 C.F.R. � 64.1200(f)(5).
5 TCPA Memorandum Opinion and Order, 10 FCC Rcd at 12408.
6
Id.
7 47 U.S.C. � 227(d)(1)(B); 47 C.F.R. � 68.318(d).
8 See 47 C.F.R. � 1.80(b)(3).