![](media/image1.png){width="1.2902777777777779in"
height="1.229861111111111in"} [April 12, 2000]{.smallcaps}

Richard Rice, President

Patriot Diamond, Inc.

3471 N. Federal Highway

Suite 300

Fort Lauderdale, Florida 33306

RE: EB-00-TC-003

Dear Mr. Rice:

This is an official **CITATION**, issued pursuant to section 503(b)(5)
of the Communications Act of 1934, as amended (the Act), for violations
of the Telephone Consumer Protection Act of 1991[^1] (TCPA) and the
Federal Communications Commission's Rules that implement that Act.[^2]

It has come to our attention that your company recently sent unsolicited
advertisements to a telephone facsimile machine (see attachments).
Pursuant to the 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."[^3] 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."[^4] 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.[^5] Mere distribution or publication of a fax number,
however, does not establish consent to receive advertisements by
fax.[^6]

In addition to the violation identified above, it appears that your
company also has violated the provisions of the TCPA and the
Commission's Rules which require any person or entity who sends a
message via a telephone facsimile machine to clearly mark "in a margin
at the top or bottom of each transmitted page of the message or on the
first page of the transmission, the date and time it is sent and an
identification of the business, other entity, or individual sending the
message and the telephone number of the sending machine or of such
business, other entity, or individual."[^7]

[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}[^8]

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 Miami Field
Office at 2210 NW 82^nd^ Avenue, Miami, Florida 33122. You can contact
the Miami office by telephone at (305) 994-1642. You must request an
interview 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
outlined above. Please reference EB-00-TC-003 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 Notice of 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

Enclosures

[^1]: Pub.L. No. 102-243, 105 Stat. 2394-2402 (1991) (codified at 47
    U.S.C. § 227)

[^2]: ^?^ 47 C.F.R. § 64.1200.

[^3]: 47 U.S.C. § 227(b)(1)(C); 47 C.F.R. § 64.1200(a)(3). 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). The Commission has 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*, Memorandum Opinion and Order, 10 FCC Rcd
    12391, 12405 (1995) (*TCPA Memorandum Opinion and Order*).

[^4]: 47 U.S.C. § 227(a)(4); 47 C.F.R. § 64.1200(f)(5).

[^5]: *TCPA Memorandum Opinion and Order*, 10 FCC Rcd at 12408.

[^6]: ^?^ *Id*.

[^7]: 47 U.S.C. § 227(d)(1)(B); 47 C.F.R. § 68.318(d).

[^8]: *See* 47 C.F.R. § 1.80(b)(3).