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> November 22, 2004

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

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

NY Industrial Roofing & Waterproofing Co.

204 Crookedhill Road

Brentwood, New York 11717

> RE: EB-04-TC-161

Dear Correspondent:

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 your company to monetary
forfeitures.

It has come to our attention that your company apparently sent one or
more unsolicited advertisements to telephone facsimile machines in
violation of Section 227(b)(1)(C) of the Communications Act 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." [^2] 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."[^3] 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.[^4] Mere
distribution or publication of a fax number, however, does not establish
consent to receive advertisements by fax.[^5]

**[If, after receipt of this citation, you 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}** [^6]

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.
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 New York Office,
New York, New York. 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-04-TC-161 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]: 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*).

[^3]: 47 U.S.C. § 227(a)(4); 47 C.F.R. § 64.1200(f)(10).

[^4]: *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*). In June
    2003, the Commission amended its rules to specify that prior express
    invitation or permission to receive a facsimile advertisement must
    be recorded in a "signed written statement that includes the
    facsimile number to which any advertisements may be sent and clearly
    indicates the recipient\'s consent to receive such facsimile
    advertisements from the sender." *2003 TCPA Report and Order*, 18
    FCC Rcd at 14124-28 (adopting new section 64.1200(a)(3)(i). This new
    provision, which supercedes the established business relationship
    exception, is scheduled to take effect June 30, 2005. *Rules and
    Regulations Implementing the Telephone Consumer Protection Act of
    1991*, Order, FCC 04-223 (rel. Oct.1, 2004). The Commission
    currently is considering petitions that seek to retain the
    established business relationship exception or require methods other
    than a signed written statement to demonstrate prior express consent
    to receive fax advertising.

[^5]: *1995 Reconsideration Order*, 10 FCC Rcd at 12408-09; s*ee also
    2003 TCPA Report and Order*, 18 FCC Rcd at 14128 (concluding that
    publication of a fax number in a trade publication or directory does
    not demonstrate consent to receive fax advertising).

[^6]: *See* 47 C.F.R. § 1.80(b)(3).