![](media/image1.png){width="1.2902777777777779in"
height="1.229861111111111in"} July 21, 2006

**[VIA CERTIFIED MAIL]{.underline}**

**[RETURN RECEIPT REQUESTED]{.underline}**

**[AND EMAIL]{.underline}**

America's Toner

aka American Toner

aka Fiducia, Inc.

Attn: John David

96 Westmoreland Ave, Suite 13

Addison, IL 60101

America's Toner

aka American Toner.

aka Fiducia, Inc.

Attn: John David

87 Eisenhower Ln S

Lombard, IL 60148-5409

America's Toner

aka American Toner

aka Fiducia, Inc.

Attn: John David

603 Country Club Drive

Bensenville, IL 60106

RE: EB-06-TC-131

Dear Mr. David:

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, future violations of the Act or
Commission's rules in this regard may subject you and your company to
monetary forfeitures.

It has come to our attention that your company, acting under your
direction, apparently sent one or more unsolicited advertisements to
telephone facsimile machines in violation of Section 227(b)(1)(C) of the
Communications Act, as described in the attached complaint(s). [^2]
Section 227(b)(1)(C) makes it "unlawful for any person within the United
States, or any person outside the United States if the recipient is
within the United States . . . 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 Act 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] Under Commission
rules and orders currently in effect, the Commission considers an
established business relationship between a fax sender and recipient to
constitute 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]

**[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.]{.underline}**

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, (2) a written statement, or
(3) a teleconference interview with the Commission's Telecommunications
Consumers Division in Washington, DC. 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 Chicago Office,
Chicago, Illinois; however, please contact 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

445-12^th^ Street, S.W., Rm. 4-C222

Washington, D.C. 20554

**Reference EB-06-TC-127 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 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 fax
    advertising.

[^2]: We have attached the 8 complaints at issue in this citation. At
    least 29 additional similar complaints are not attached but are
    available from the FCC's complaint database.

[^3]: 47 U.S.C. § 227(b)(1)(C); *see also* 47 C.F.R. § 64.1200(a)(3)
    (providing that no person or entity may . . . use a telephone
    facsimile machine, computer, or other device to send an unsolicited
    advertisement to a telephone facsimile machine). 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)(8). The Commission has stated that "\[t\]he TCPA's
    definition of 'telephone facsimile machine' broadly applies to any
    equipment that has the capacity to send or receive text or images."
    Thus, "faxes sent to personal computers equipped with, or attached
    to, modems and to computerized fax servers are subject to the TCPA's
    prohibition on unsolicited faxes. . . \[although\] the prohibition
    does not extend to facsimile messages sent as email over the
    Internet." *Rules and Regulations Implementing the Telephone
    Consumer Protection Act of 1991*, Report and Order, 18 FCC Rcd
    14014, 14131-32 (2003) (*2003 TCPA Report and Order*).

[^4]: 47 U.S.C. § 227(a)(4); 47 C.F.R. § 64.1200(f)(10).

[^5]: *See* *Rules and Regulations Implementing the Telephone Consumer
    Protection Act of 1991*, Memorandum Opinion and Order, 10 FCC Rcd
    12391, 12405 (1995) (*1995 TCPA Reconsideration Order*); *see also*
    *Rules and Regulations Implementing the Telephone Consumer
    Protection Act of 1991*, Order, FCC 05-132 (rel. June 27, 2005).
    Under the Junk Fax Prevention Act of 2005, Pub. L. 109-21, 119 Stat.
    359 (2005), Congress amended the Communications Act to specify,
    among other things, the conditions under which an established
    business relationship provides an exception to the prohibition on
    unsolicited fax advertising.

[^6]: *1995 Reconsideration Order*, 10 FCC Rcd at 12408-09; s*ee also
    2003 TCPA Report and Order*, 18 FCC Rcd at 14128 (concluding that
    mere publication of a fax number in a trade publication or directory
    does not demonstrate consent to receive fax advertising).