Tell us Sello who is this James w Zimbler?
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554
AUGUST
19, 2002
BY CERTIFIED MAIL
RETURN RECEIPT REQUESTED
TTI Holdings of America, Corporation
a.k.a. Thermatic International, Inc.
a.k.a. NBM Information Technology, Inc.
76 North Broadway
Hiksville, New York 11801
Attention: James W. Zimbler, President/Director
Andrew B. Mazzone, Chairman of the Board
TTI Holdings of America, Corporation
a.k.a. Thermatic International, Inc.
a.k.a. NBM Information Technology, Inc.
68A Lamar Street
West Babylon, New York 11704
Attention: James W. Zimbler, President/Director
Andrew B. Mazzone, Chairman of the Board
RE: EB-02-TC-154
Dear Correspondent(s):
This is an official CITATION and LETTER OF INQUIRY related
to your business's apparent violation of section 227 of the
Communications Act of 1934, as amended, (``Communications Act''),
47 U.S.C. ? 227, and section 64.1200 of Federal Communications
Commission (``FCC'' or ``Commission'') rules, 47 C.F.R. ?
64.1200. These actions are taken pursuant to the provisions of
sections 4(i), 403, and 503(b)(5) of the Communications Act, 47
U.S.C. ?? 154(i), 403, 503(b)(5).
Section 227 was added to the Communications Act by the
Telephone Consumer Protection Act of 19911 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 fax advertising.
In order to ensure that telephone facsimile machines are
available for their owner's use and that advertising costs are
not shifted from advertisers to individuals or entities that
receive ads, the TCPA generally prohibits the delivery of
unsolicited advertisements to telephone facsimile machines.
It has come to our attention that you or your company sent
one or more unsolicited advertisements to a telephone facsimile
machine(s). These advertisements apparently were transmitted on
your behalf by Fax.com. On August 7, 2002, this Commission
issued the enclosed Notice of Apparent Liability for Forfeiture
(NAL) finding that Fax.com is apparently liable for a forfeiture
of $5,412,000 for sending unsolicited fax advertisements on
behalf of numerous business entities, including yours. The
purpose of this correspondence is (1) to inform you of your
potential liability for monetary forfeitures if you continue to
send unsolicited advertisements to telephone facsimile machines,
either through Fax.com, some other entity, or on your own, and
(2) to gather information regarding your involvement with Fax.com
and your advertising practices that fall under the TCPA.
As set forth below, we direct you to respond to this
Citation and Letter of Inquiry by providing the information and
documents specified below no later than 21 days after the date of
this correspondence.
I. CITATION FOR APPARENT VIOLATIONS OF THE TCPA
As indicated above, the TCPA and the Commission's rules make
it unlawful to use a ``telephone facsimile machine, computer, or
other device to send an unsolicited advertisement to a telephone
facsimile machine.''2 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.''3
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.4 Mere distribution or publication of a fax
number, however, does not establish consent to receive
advertisements by fax.5
Materials attached to this Citation and Letter of Inquiry
show that you or your business apparently sent advertisements to
telephone facsimile machines. Further, as shown in the
attachments, the individuals, businesses, or other entities that
received these advertisements have all indicated that they did
not (1) have an established business relationship with either
your business or Fax.com, or (2) otherwise expressly agree to
receive the fax advertisements. Accordingly, it appears that
your business has violated section 227(b)(3) of the
Communications Act and section 64.1200(a)(3) of the Commission's
rules by sending unsolicited advertisements to telephone
facsimile machines.
You should be aware that such 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. See 47
C.F.R. ? 1.80(b)(3).
Pursuant to section 503(b)(5) of the Communications Act, you
may request a personal interview to discuss this citation at the
Commission's Field Office nearest to your place of business. You
should be prepared to address the steps your business is taking
to ensure compliance with the federal prohibition on faxing
unsolicited advertisements. You may contact Senetta Lancaster at
slancaster@fcc.gov or at (202) 418-2875 to locate the appropriate
field office. As indicated above, you must schedule such an
interview to occur within 21 days of the date of this citation.
Alternatively, you may submit a written statement responding to
the citation within 21 days of the date of this citation. 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.
II. INQUIRY REGARDING FAX.COM
AND ADVERTISING PRACTICES SUBJECT TO 47 U.S.C. ? 227
A. Instructions
If you request that any information or documents responsive
to this letter be treated in a confidential manner, you shall
submit, along with all responsive documents, a statement of the
reasons why the documents should be afforded confidential
treatment and the facts upon which this claim is based, in
accordance with the FCC's rules. See 47 C.F.R. ? 0.459.
If you withhold any documents under claims of privilege, you
shall submit, together with any claim of privilege, a schedule of
the items withheld that states individually as to each such item
the numbered request (below) to which each item responds and the
type, title, specific subject matter, and date of the item; the
names, addresses, positions, and organizations of all authors and
recipients of the item; and the specific grounds for claiming
that the item is privileged.
Each requested document not subject to a claim of privilege
or request for confidential treatment shall be submitted in its
entirety even if only a portion of that document is responsive to
a request. This means that the document shall not be edited,
cut, or expunged, and shall include all appendices, tables, or
other attachments, and all other documents referred to in the
document or attachments. All manuals, instructions, and any
other written materials necessary to understand any documents
responsive to these requests must also be submitted.
In addition, you should immediately modify your document
retention policies, if necessary, to ensure that no arguably
relevant documents are destroyed. This includes not only the
information requested, but also any other documents relating to
these matters, including, without limitation, files, computer
disks and tapes, audio or visual tapes or recordings, manuals,
instructions, training materials, memoranda, documents, forms,
letters, or other writings used in connection with your
advertising, promotion, marketing, offering for sale, sale, and
billing.
For purposes of this letter, the word "any" shall be
construed to include the word "all," and the word "all" shall be
construed to include the word "any." Additionally, the word "or"
shall be construed to include the word "and," and the word "and"
shall be construed to include the word "or." The word "each"
shall be construed to include the word "every," and the word
"every" shall be construed to include the word "each."
For each document or statement submitted in response to the
requests below, indicate, by number, to which request it is
responsive. If any document is undated, state the date on which
it was prepared. If any document does not identify its author(s)
or recipient(s), state, if known, the name of the author(s) or
recipient(s). If such information is unknown to you, identify
the person(s) from whose files the document was retrieved.
For purposes of this letter, unless otherwise specified, the
documents that are the subject of the numbered paragraphs below
are all documents dated or created, in either final or draft
form, from January 1, 1998 until the present.
Identify with reasonable specificity all documents provided
in response to these requests. Any written statement in response
to a request should be certified by an authorized officer of the
company.
B. Definitions
For purposes of this letter, the following definitions
apply:
"Document" shall mean the complete original (or in lieu
thereof, exact copies of the original) and any non-identical copy
(whether different from the original because of notations on the
copy or otherwise), regardless of origin or location, of any
written, typed, printed, transcribed, taped, recorded, filmed,
punched, computer-stored, or graphic matter of every type and
description, however and by whomever prepared, produced,
disseminated, or made, including but not limited to any
advertisement, book, pamphlet, periodical, contract,
correspondence, facsimile, e-mail, file, invoice, memorandum,
note, telegram, report, record, handwritten note, working paper,
routing slip, chart, graph, photograph, paper, index, map,
tabulation, manual, guide, outline, script, abstract, history,
calendar, diary, agenda, minute, marketing plan, research paper,
preliminary drafts, or versions of all of the above, and computer
material (print-outs, cards, magnetic or electronic tapes, disks
and such codes or instructions as will transform such computer
materials into easily understandable form).
``You'' or ``your business'' shall mean the business entity
captioned above and any affiliate, d/b/a, parent companies, any
wholly or partially owned subsidiary, or other affiliated
companies or businesses, and all directors, officers, employees,
or agents, including consultants and any other persons working
for or on behalf of the foregoing at any time during the period
covered by this letter.
``Fax broadcaster'' shall mean any individual or entity that
transmits messages to telephone facsimile machines on behalf of
other entities for a fee.
``Fax.com'' shall mean Fax.com, Inc., and to the extent they
are known to you, any affiliate, d/b/a, parent companies, any
wholly or partially owned subsidiary, or other affiliated
companies or businesses, and all directors, officers, employees,
or agents, including consultants and any other persons working
for or on behalf of the foregoing at any time during the period
covered by this letter.
``Advertisement'' shall mean any material advertising the
commercial availability or quality of any property, goods, or
services.''
``Unsolicited advertisement'' shall mean any advertisement
that is transmitted to any person without that person's prior
express invitation or permission, unless that person has an
established business relationship with the sender.''
``Established business relationship'' shall mean a prior or
existing relationship formed by a voluntary two-way communication
between persons or entities, with or without an exchange of
consideration, on the basis of an inquiry, application, purchase,
or transaction made by a person or entity regarding products or
services offered by another person or entity, which relationship
has not been previously terminated by either party.''
C. Documents and Information to be Provided
1. Describe in detail any arrangements whereby any fax
broadcaster, including Fax.com, has transmitted
advertisements on behalf of your business to telephone
facsimile machines. Provide a copy of each advertisement
that was so transmitted on behalf of your business and
provide the following information with respect to each
advertisement:
a. The timeframe during which you employed any fax
broadcaster, including Fax.com, to transmit the
advertisement to telephone facsimile machines;
b. The total number of transmissions of the
advertisement to telephone facsimile machines that you
employed any fax broadcaster, including Fax.com, to
make, broken down by month;
c. Any charges levied by any fax broadcaster,
including Fax.com, for transmitting the advertisement
on behalf of your business to telephone facsimile
machines, broken down by total number of faxes
transmitted, by individual fax, and by month;
d. Any payments made by or on behalf of your business
to any fax broadcaster, including Fax.com, for
transmitting the advertisement on behalf of your
business to telephone facsimile machines, broken down
by total number of faxes transmitted, by individual
fax, and by month;
e. Whether you employed any fax broadcaster,
including Fax.com, to assist with the design or content
of the advertisement. Describe in detail any input
from the fax broadcaster regarding the content of the
advertisement;
f. Whether you provided any fax broadcaster,
including Fax.com, with a list of telephone facsimile
machine numbers to be used in transmitting the
advertisement on your behalf. If so, provide such
list.
g. Whether you employed any fax broadcaster,
including Fax.com, to transmit the advertisement on
behalf of your business to telephone facsimile machines
whose numbers are contained in the fax broadcaster's
database. If so, describe the range of destination
numbers (e.g., nationwide, statewide, regional) that
you employed the fax broadcaster to use.
h. Any arrangements whereby any fax broadcaster,
including Fax.com, handles or handled complaints,
lawsuits, or other enforcement actions related to
transmission of the advertisement to telephone
facsimile machines, including any complaints, lawsuits,
or actions initiated by the FCC, any state regulatory
or law enforcement entities, or individual consumers or
business entities. Does the arrangement provide for
the fax broadcaster(s) to represent you in such actions
and/or pay or reimburse you for any monetary
forfeitures, court judgments, settlement payments or
expenditures of any type related to such complaints or
enforcement actions?
Answer each question separately for each advertisement. If
you employed more than one fax broadcaster to transmit a
particular advertisement, answer each question separately
for each fax broadcaster. Provide a copy of any contracts
or agreements whereby your business employed any fax
broadcaster, including Fax.com, to transmit your business's
advertisements to telephone facsimile machines. Provide any
other relevant documents related to your arrangements with
any fax broadcaster.
2. Describe any steps you have taken to ensure that
advertisements transmitted by any fax broadcaster, including
Fax.com, on behalf of your business were delivered only to
telephone facsimile machines belonging to individuals or
other entities that (a) have an established business
relationship with either your business or the fax
broadcaster, or (b) have otherwise provided prior express
consent for the advertisement to be faxed. Provide any
relevant documents.
3. Describe any information conveyed to you by any fax
broadcaster that you employed to transmit advertisements to
telephone facsimile machines, including Fax.com, regarding
the lawfulness of transmitting unsolicited advertisements to
telephone facsimile machines. You should address whether
any such fax broadcaster, including Fax.com,
1.a. Ever informed you that the transmission of
unsolicited advertisements to telephone facsimile
machines violates federal law; or
1.b. Ever stated or suggested to you that an
advertisement sent to a telephone facsimile machine is
made lawful by inclusion of a toll-free opt-out number
on the face of an advertisement.
If you employed more than one fax broadcaster to transmit
advertisements to telephone facsimile machines, answer each
question separately for each fax broadcaster. Provide any
relevant documents.
4. Describe any complaints, lawsuits, or enforcement
actions initiated against you for the transmission of
advertisements to telephone facsimile machines by or on
behalf of your business. For each such complaint, lawsuit
or enforcement action, include the following information:
a. The date the action was initiated;
b. The identity of the initiating party;
c. The forum in which the complaint or enforcement
action was initiated;
d. Whether the action involves advertisements
transmitted by any fax broadcaster, including
Fax.com;
e. Any response to the action by or on behalf of your
company or any fax broadcaster, including Fax.com;
f. Any monetary payments made in response to or in
settlement of the action;
g. Any ruling or agreement resolving the action.
Provide any relevant documents.
5. Describe in detail any legal action you have initiated
against any fax broadcaster, including Fax.com, related to
a. The fax broadcaster's transmission of
advertisements to telephone facsimile machines on
your business's behalf; or
b. The fax broadcaster's marketing of its fax
broadcasting service.
Provide any relevant documents.
We encourage you to furnish any additional documents or provide a
statement of any other facts that you believe may be relevant to
this inquiry.
Finally, you are directed to provide an affidavit or
declaration pursuant to 28 U.S.C.
? 1746 and 47 C.F.R. ? 1.16, signed by an authorized officer of
your business, which states that all of the documents and
information requested by this letter which are in your
possession, custody, control, or knowledge have been produced,
and which certifies that the information produced is true and
correct. You should be aware that the knowing and willful making
of any false statement, or the concealment of any material fact,
in reply to this Citation and Letter of Inquiry is punishable by
fine or imprisonment under 18 U.S.C. ? 1001.
Your response to this inquiry and any written response to
the citation should be submitted no later than 21 days from the
date of this letter to:
Kurt Schroeder
Deputy Chief
Telecommunications Consumers Division
Enforcement Bureau
Federal Communications Commission
445 - 12th Street, S.W.
Washington, D.C. 20554
Please reference EB-02-TC-154 when corresponding with the
Commission regarding these matters.
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 in response to the Citation and Letter of Inquiry.
Thank you for your prompt cooperation and assistance in this
matter. You may contact Mary Romano at (202) 418-0975 or Mr.
Schroeder at (202) 418-0966 if you have any questions about this
inquiry.
Colleen Heitkamp
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 U.S.C. ? 227(b)(1)(C); 47 C.F.R. ? 64.1200(a)(3).
3 47 U.S.C. ? 227(a)(4); 47 C.F.R. ? 64.1200(f)(5).
4 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).
5
TCPA Memorandum Opinion and Order, 10 FCC Rcd 12391, 12408.
