Federal Communications Commission January 14, 2009 VIA CERTIFIED MAIL AND REGULAR MAIL RETURN RECEIPT REQUESTED Huckleberry Associates, Inc Attn: Derrick Huckleberry, Owner Doris Huckleberry, Director 1906 Howell Branch Road Winter Park, FL 32792 RE: File No. EB-09-TC-001 Dear Correspondents: This is an official CITATION, issued pursuant to section 503(b)(5) of the Communications Act of 1934, as amended (the Act), 47 U.S.C. § 503(b)(5), for violations of the Act and the Federal Communications Commission’s rules that govern telephone solicitations and unsolicited advertisements.1 As explained below, you may appeal this citation. In addition, future violations of the Act or Commission’s rules in this regard may subject you and your company to monetary forfeitures.2 Attached are consumer complaints regarding prerecorded messages that your company, acting under your direction, has delivered to a residential telephone line or lines. These complaints indicate that you and your company have violated section 227(b)(1)(B) of the Act and section 64.1200(a)(2) of the Commission’s rules. See 47 U.S.C. § 227(b)(1)(B); 47 C.F.R. § 64.1200(a)(2). 1 47 U.S.C. § 227; 47 C.F.R. § 64.1200. 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 parallel rules restrict a variety of practices that are associated with telephone solicitation and use of the telephone network to deliver unsolicited advertisements, including prerecorded messages to residential telephone lines. 2 We have attached one complaint(s) at issue in this citation. Within the complaint(s) is the telephone number 800- 422-1555, which your business utilized during the time period at issue. FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, D.C. 20554 Federal Communications Commission 2 Under Section 227(b)(1)(B) of the Act and section 64.1200(a)(2) of the Commission’s rules, it is unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call (i) Is made for emergency purposes,3 (ii) Is not made for a commercial purpose, (iii) Is made for a commercial purpose but does not include or introduce an unsolicited advertisement4 or constitute a telephone solicitation,5 (iv) Is made to any person with whom the caller has an established business relationship6 at the time the call is made, or (v) Is made by or on behalf of a tax-exempt nonprofit organization. Accordingly, it is generally unlawful to use an artificial or prerecorded voice to deliver an advertisement or telephone solicitation to a residential telephone line unless the call is made: (1) 3 The term “emergency purposes” means calls made necessary in any situation affecting the health and safety of consumers.” 47 C.F.R. § 64.1200(f)(3). 4 The term “unsolicited advertisement” means “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.” 47 U.S.C.§ 227(a)(4); 47 C.F.R. § 64.1200(f)(13). 5 The term “telephone solicitation” means 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, but such term does not include a call or message: (i) To any person with that person's prior express invitation or permission; (ii) To any person with whom the caller has an established business relationship; or (iii) By or on behalf of a tax-exempt nonprofit organization. 47 U.S.C. § 227(a)(4); 47 C.F.R.§ 64.1200(f)(12). 6 The term “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. (i) The subscriber's seller-specific do-not-call request, as set forth in paragraph (d)(3) of this section, terminates an established business relationship for purposes of telemarketing and telephone solicitation even if the subscriber continues to do business with the seller. (ii) The subscriber's established business relationship with a particular business entity does not extend to affiliated entities unless the subscriber would reasonably expect them to be included given the nature and type of goods or services offered by the affiliate and the identity of the affiliate. 47 C.F.R. § 64.1200(f)(4) Federal Communications Commission 3 by or on behalf of a tax-exempt nonprofit organization; (2) with the prior express consent of the called party; or (3) to a person who has an established business relationship with the caller. The attached information indicates that your company, acting under your direction, delivered an unsolicited advertisement or telephone solicitation, through a prerecorded message, to one or more residential telephone subscribers who either (1) had not expressly invited or authorized the call(s) or (2) did not have an established business relationship with you or your company (a transaction within 18 months prior to the call(s), or an inquiry or application within 3 months prior to the call(s)). As explained above, this action violates section 227(b)(1)(B) of the Communications Act and section 64.1200(a)(2) of the Commission’s rules. Additionally, attached are 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. These complaints indicate that your company, acting under your direction, has violated the Commission’s rules regarding telephone solicitations. See 47 C.F.R. § 64.1200(c)(2). 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.”7 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 call8 or has an established business relationship9 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 7 47 U.S.C. § 227(a)(4); 47 C.F.R. § 64.1200(f)(12). 8 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). 9 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)(4). 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)(4)(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). Federal Communications Commission 4 National Do-Not-Call Registry if that consumer has a personal relationship with the individual making the calls.10 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 starting no later than 31 days after a number is placed on the National Do-Not-Call Registry.11 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. Do-not-call registrations must be honored indefinitely, or until either the consumer cancels the registration or the database administrator removes the telephone number from the National Do-Not-Call Registry.12 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 or your company 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 occurring before September 2, 2008, and $16,000 for each such violation or each day of a continuing violation occurring on or after September 2, 2008.13 10 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)(14). 11 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 14014, 14040, para. 38 (2003). The 3-month provision applied to telephone solicitations made before January 1, 2005. 12 47 C.F.R. § 64.1200(c)(2). 13 See 47 C.F.R. §1.80(b)(3); Amendment of Section 1.80 of the Commission’s Rules and Adjustment of Forfeiture Maxima to Reflect Inflation, 15 FCC Rcd 18221 (2000) (forfeiture maximum set at $11,000 for violators who are not common carriers or other entities specifically designated in section 503 of the Act); Amendment of Section 1.80(b) of the Commission’s Rules and Adjustment of Forfeiture Maxima to Reflect Inflation, 19 FCC Rcd 10945 (2004) (amendment of section 1.80(b) to reflect inflation left the forfeiture maximum for this type of violator at $11,000); Amendment of Section 1.80(b) of the Commission’s Rules, Adjustment of Forfeiture Maxima to Reflect Inflation, FCC Federal Communications Commission 5 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. You may use this response to appeal this citation. For example, you may claim that you can document that you had an established business relationship with the called party at the time of the call or that you are a tax-exempt nonprofit organization. In addition, your response should specify the actions that you are taking to ensure that you do not violate the Commission’s rules governing prerecorded messages, as described above. You may schedule a personal interview at the nearest Commission field office. These offices are located in: Atlanta, GA; Boston, MA; Chicago, IL; Columbia, MD; Dallas, TX; Denver, CO; Detroit, MI; Kansas City, MO; Los Angeles, CA; New Orleans, LA; New York, NY; Philadelphia, PA; San Diego, CA; San Francisco, CA; Seattle, WA; and Tampa, FL. 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-09-TC-001 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. 08-154, rel. June 13, 2008 (amendment of section 1.80(b) to reflect inflation increased the forfeiture maximum for this type of violator to $16,000, effective September 2, 2008). Federal Communications Commission 6 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