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February 28, 2007

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

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

Graham Heating & Air Conditioning, Inc.

Attn: Michael Leccese

1498 Bellair Road

Clearwater, Florida 33756-2357

Re: File No. EB-07-TC-580

Dear Mr. Leccese:

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), for violations of 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 Commission's rules in this regard may
subject you and your company to monetary forfeitures.

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."[^2] 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 call[^3] or has an established
business relationship[^4] 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 National
Do-Not-Call Registry if that consumer has a personal relationship with
the individual making the calls.[^5]

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 no later than 31 days after a number is placed on the
National Do-Not-Call Registry,[^6] and for a period of no less than five
years. 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. 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 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}** [^7]

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 are exempt from the telephone solicitation rules,[^8]
that you downloaded and used the National Do-Not-Call Registry in
compliance with our rules but the person's telephone number was not on
that version of the Registry, or that the calls were made in error and
should be covered by the Commission's safe harbor provisions, 47 C.F.R.
§ 64.1200(c)(2)(i). In addition, 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.

**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

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

Washington, D.C. 20554

**Reference File No. EB-07-TC-580 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 C.F.R. § 64.1200. A copy of these rules is enclosed for your
    convenience.

[^2]: 47 U.S.C. § 227(a)(3); 47 C.F.R. § 64.1200(f)(9).

[^3]: 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).

[^4]: 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)(3).
    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)(3)(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,
    1^st^ Sess., 102^nd^ Cong. at 15 (1991); *Charvat v. Dispatch
    Consumer Services, Inc.,* 95 Ohio St. 3d 505, 769 N.E.2d 829 (2002).

[^5]: 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)(11).

[^6]: 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.

[^7]: *See* 47 C.F.R. § 1.80(b)(3).

[^8]: *See* *2003 Order*, 18 FCC Rcd at 14042-49; 47 C.F.R. §
    64.1200(f)(9) (exceptions to definition of "telephone
    solicitation").