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> February 4, 2003

ELF Painting and Wallpapering

10309 Cherry View Court

Oakton, Virginia 22124-2530

Attention: Ed Faust, Owner

> RE: EB-03-TC-004

Dear Mr. Faust:

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).

It has come to our attention that your company recently sent one or more
unsolicited advertisements to telephone facsimile machines (see
attachment).[^1] Pursuant to the Telephone Consumer Protection Act of
1991 (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." 47 U.S.C. §
227(b)(1)(C); 47 C.F.R. § 64.1200(a)(3).

[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.]{.underline} *See* 47 C.F.R. § 1.80(b)(3).

The phrase "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." 47 U.S.C. § 227(a)(4); 47 C.F.R. § 64.1200(f)(5). 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). Addressing the TCPA's definition of "telephone facsimile
machine," the Commission 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*,
10 FCC Rcd 12391, 12405, para. 29 (1995).

**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 Columbia
Office at 9200 Farm House Lane, Columbia, Maryland 21046, which you can
contact by telephone at (301) 725-1996. 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

445-12^th^ 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(s)
outlined above. Please reference EB-03-TC-004 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 forfeiture is issued, your
unresponsiveness will be considered in our assessment of a forfeiture
amount]{.underline}.

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

Enclosure

[^1]: ^?^ In addition to the advertisement(s) referenced by and attached
    to this citation, the complaining party may also have included with
    the complaint one or more facsimile advertisements transmitted by
    other senders. This citation concerns only the facsimile
    advertisement(s) referenced by and attached to the citation, and
    your response only needs to address such advertisement(s).