![](media/image1.png){width="1.2902777777777779in"
height="1.229861111111111in"} [August 15, 2002]{.smallcaps}

### [BY CERTIFIED MAIL]{.underline}

[RETURN RECEIPT REQUESTED]{.underline}

The FINX Group

(The Money Line Report)

249 North Sawmill River Road

Elmsford, New York 10523

Attention: Lewis S. Schiller, CEO

RE EB-02-TC-155

Dear Correspondent(s):

This is an official **CITATION** and **LETTER OF INQUIRY** related to
your business's apparent violation of section 227 of the Communications
Act of 1934, as amended, ("Communications Act"), 47 U.S.C. § 227, and
section 64.1200 of Federal Communications Commission ("FCC" or
"Commission") rules, 47 C.F.R. § 64.1200. These actions are taken
pursuant to the provisions of sections 4(i), 403, and 503(b)(5) of the
Communications Act, 47 U.S.C. §§ 154(i), 403, 503(b)(5).

Section 227 was added to the Communications Act by the Telephone
Consumer Protection Act of 1991[^1] 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. In order to ensure that telephone facsimile machines are
available for their owner's use and that advertising costs are not
shifted from advertisers to individuals or entities that receive ads,
the TCPA generally prohibits the delivery of unsolicited advertisements
to telephone facsimile machines.

It has come to our attention that you or your company sent one or more
unsolicited advertisements to a telephone facsimile machine(s). These
advertisements apparently were transmitted on your behalf by Fax.com. On
August 7, 2002, this Commission issued the enclosed Notice of Apparent
Liability for Forfeiture (NAL) finding that Fax.com is apparently liable
for a forfeiture of \$5,412,000 for sending unsolicited fax
advertisements on behalf of numerous business entities, including yours.
The purpose of this correspondence is (1) to inform you of your
potential liability for monetary forfeitures if you continue to send
unsolicited advertisements to telephone facsimile machines, either
through Fax.com, some other entity, or on your own, and (2) to gather
information regarding your involvement with Fax.com and your advertising
practices that fall under the TCPA.

As set forth below, we direct you to respond to this Citation and Letter
of Inquiry by providing the information and documents specified below no
later than 21 days after the date of this correspondence.

**I. CITATION FOR APPARENT VIOLATIONS OF THE TCPA**

As indicated above, the TCPA and the Commission's rules make it unlawful
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 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."[^3] 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.[^4] Mere distribution or publication of a fax number,
however, does not establish consent to receive advertisements by
fax.[^5]

Materials attached to this Citation and Letter of Inquiry show that you
or your business apparently sent advertisements to telephone facsimile
machines. Further, as shown in the attachments, the individuals,
businesses, or other entities that received these advertisements have
all indicated that they did not (1) have an established business
relationship with either your business or Fax.com, or (2) otherwise
expressly agree to receive the fax advertisements. Accordingly, it
appears that your business has violated section 227(b)(3) of the
Communications Act and section 64.1200(a)(3) of the Commission's rules
by sending unsolicited advertisements to telephone facsimile machines.

[You should be aware that such 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).

Pursuant to section 503(b)(5) of the Communications Act, you may request
a personal interview to discuss this citation at the Commission's Field
Office nearest to your place of business. You should be prepared to
address the steps your business is taking to ensure compliance with the
federal prohibition on faxing unsolicited advertisements. You may
contact Senetta Lancaster at <slancaster@fcc.gov> or at (202) 418-2875
to locate the appropriate field office. As indicated above, you must
schedule such an interview to occur within 21 days of the date of this
citation. Alternatively, you may submit a written statement responding
to the citation within 21 days of the date of this citation. [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}

II. INQUIRY REGARDING FAX.COM

AND ADVERTISING PRACTICES SUBJECT TO 47 U.S.C. § 227

A. [Instructions]{.underline}

If you request that any information or documents responsive to this
letter be treated in a confidential manner, you shall submit, along with
all responsive documents, a statement of the reasons why the documents
should be afforded confidential treatment and the facts upon which this
claim is based, in accordance with the FCC\'s rules. *See* 47 C.F.R. §
0.459.

If you withhold any documents under claims of privilege, you shall
submit, together with any claim of privilege, a schedule of the items
withheld that states individually as to each such item the numbered
request (below) to which each item responds and the type, title,
specific subject matter, and date of the item; the names, addresses,
positions, and organizations of all authors and recipients of the item;
and the specific grounds for claiming that the item is privileged.

Each requested document not subject to a claim of privilege or request
for confidential treatment shall be submitted in its entirety even if
only a portion of that document is responsive to a request. This means
that the document shall not be edited, cut, or expunged, and shall
include all appendices, tables, or other attachments, and all other
documents referred to in the document or attachments. All manuals,
instructions, and any other written materials necessary to understand
any documents responsive to these requests must also be submitted.

In addition, you should immediately modify your document retention
policies, if necessary, to ensure that no arguably relevant documents
are destroyed. This includes not only the information requested, but
also any other documents relating to these matters, including, without
limitation, files, computer disks and tapes, audio or visual tapes or
recordings, manuals, instructions, training materials, memoranda,
documents, forms, letters, or other writings used in connection with
your advertising, promotion, marketing, offering for sale, sale, and
billing.

For purposes of this letter, the word \"any\" shall be construed to
include the word \"all,\" and the word \"all\" shall be construed to
include the word \"any.\" Additionally, the word \"or\" shall be
construed to include the word \"and,\" and the word \"and\" shall be
construed to include the word \"or.\" The word \"each\" shall be
construed to include the word \"every,\" and the word \"every\" shall be
construed to include the word \"each.\"

For each document or statement submitted in response to the requests
below, indicate, by number, to which request it is responsive. If any
document is undated, state the date on which it was prepared. If any
document does not identify its author(s) or recipient(s), state, if
known, the name of the author(s) or recipient(s). If such information is
unknown to you, identify the person(s) from whose files the document was
retrieved.

For purposes of this letter, unless otherwise specified, the documents
that are the subject of the numbered paragraphs below are all documents
dated or created, in either final or draft form, from January 1, 1998
until the present.

Identify with reasonable specificity all documents provided in response
to these requests. Any written statement in response to a request should
be certified by an authorized officer of the company.

B. [Definitions]{.underline}

For purposes of this letter, the following definitions apply:

\"Document\" shall mean the complete original (or in lieu thereof, exact
copies of the original) and any non-identical copy (whether different
from the original because of notations on the copy or otherwise),
regardless of origin or location, of any written, typed, printed,
transcribed, taped, recorded, filmed, punched, computer-stored, or
graphic matter of every type and description, however and by whomever
prepared, produced, disseminated, or made, including but not limited to
any advertisement, book, pamphlet, periodical, contract, correspondence,
facsimile, e-mail, file, invoice, memorandum, note, telegram, report,
record, handwritten note, working paper, routing slip, chart, graph,
photograph, paper, index, map, tabulation, manual, guide, outline,
script, abstract, history, calendar, diary, agenda, minute, marketing
plan, research paper, preliminary drafts, or versions of all of the
above, and computer material (print-outs, cards, magnetic or electronic
tapes, disks and such codes or instructions as will transform such
computer materials into easily understandable form).

"You" or "your business" shall mean the business entity captioned above
and any affiliate, d/b/a, parent companies, any wholly or partially
owned subsidiary, or other affiliated companies or businesses, and all
directors, officers, employees, or agents, including consultants and any
other persons working for or on behalf of the foregoing at any time
during the period covered by this letter.

"Fax broadcaster" shall mean any individual or entity that transmits
messages to telephone facsimile machines on behalf of other entities for
a fee.

"Fax.com" shall mean Fax.com, Inc., and to the extent they are known to
you, any affiliate, d/b/a, parent companies, any wholly or partially
owned subsidiary, or other affiliated companies or businesses, and all
directors, officers, employees, or agents, including consultants and any
other persons working for or on behalf of the foregoing at any time
during the period covered by this letter.

"Advertisement" shall mean any material advertising the commercial
availability or quality of any property, goods, or services."

"Unsolicited advertisement" shall mean any advertisement that is
transmitted to any person without that person's prior express invitation
or permission, unless that person has an established business
relationship with the sender."

"Established business relationship" shall mean a prior or existing
relationship formed by a voluntary two-way communication between persons
or entities, with or without an exchange of consideration, on the basis
of an inquiry, application, purchase, or transaction made by a person or
entity regarding products or services offered by another person or
entity, which relationship has not been previously terminated by either
party."

C. [Documents and Information to be Provided]{.underline}

1.  Describe in detail any arrangements whereby any fax broadcaster,
    including Fax.com, has transmitted advertisements on behalf of your
    business to telephone facsimile machines. Provide a copy of each
    advertisement that was so transmitted on behalf of your business and
    provide the following information with respect to each
    advertisement:

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a.  The timeframe during which you employed any fax broadcaster,
    including Fax.com, to transmit the advertisement to telephone
    facsimile machines;

b.  The total number of transmissions of the advertisement to telephone
    facsimile machines that you employed any fax broadcaster, including
    Fax.com, to make, broken down by month;

c.  Any charges levied by any fax broadcaster, including Fax.com, for
    transmitting the advertisement on behalf of your business to
    telephone facsimile machines, broken down by total number of faxes
    transmitted, by individual fax, and by month;

d.  Any payments made by or on behalf of your business to any fax
    broadcaster, including Fax.com, for transmitting the advertisement
    on behalf of your business to telephone facsimile machines, broken
    down by total number of faxes transmitted, by individual fax, and by
    month;

e.  Whether you employed any fax broadcaster, including Fax.com, to
    assist with the design or content of the advertisement. Describe in
    detail any input from the fax broadcaster regarding the content of
    the advertisement;

f.  Whether you provided any fax broadcaster, including Fax.com, with a
    list of telephone facsimile machine numbers to be used in
    transmitting the advertisement on your behalf. If so, provide such
    list.

g.  Whether you employed any fax broadcaster, including Fax.com, to
    transmit the advertisement on behalf of your business to telephone
    facsimile machines whose numbers are contained in the fax
    broadcaster's database. If so, describe the range of destination
    numbers (*e.g.*, nationwide, statewide, regional) that you employed
    the fax broadcaster to use.

h.  Any arrangements whereby any fax broadcaster, including Fax.com,
    handles or handled complaints, lawsuits, or other enforcement
    actions related to transmission of the advertisement to telephone
    facsimile machines, including any complaints, lawsuits, or actions
    initiated by the FCC, any state regulatory or law enforcement
    entities, or individual consumers or business entities. Does the
    arrangement provide for the fax broadcaster(s) to represent you in
    such actions and/or pay or reimburse you for any monetary
    forfeitures, court judgments, settlement payments or expenditures of
    any type related to such complaints or enforcement actions?

> Answer each question separately for each advertisement. If you
> employed more than one fax broadcaster to transmit a particular
> advertisement, answer each question separately for each fax
> broadcaster. Provide a copy of any contracts or agreements whereby
> your business employed any fax broadcaster, including Fax.com, to
> transmit your business's advertisements to telephone facsimile
> machines. Provide any other relevant documents related to your
> arrangements with any fax broadcaster.

2.  Describe any steps you have taken to ensure that advertisements
    transmitted by any fax broadcaster, including Fax.com, on behalf of
    your business were delivered only to telephone facsimile machines
    belonging to individuals or other entities that (a) have an
    established business relationship with either your business or the
    fax broadcaster, or (b) have otherwise provided prior express
    consent for the advertisement to be faxed. Provide any relevant
    documents.

3.  Describe any information conveyed to you by any fax broadcaster that
    you employed to transmit advertisements to telephone facsimile
    machines, including Fax.com, regarding the lawfulness of
    transmitting unsolicited advertisements to telephone facsimile
    machines. You should address whether any such fax broadcaster,
    including Fax.com,

    a.  Ever informed you that the transmission of unsolicited
        advertisements to telephone facsimile machines violates federal
        law; or

    b.  Ever stated or suggested to you that an advertisement sent to a
        telephone facsimile machine is made lawful by inclusion of a
        toll-free opt-out number on the face of an advertisement.

> If you employed more than one fax broadcaster to transmit
> advertisements to telephone facsimile machines, answer each question
> separately for each fax broadcaster. Provide any relevant documents.

4.  Describe any complaints, lawsuits, or enforcement actions initiated
    against you for the transmission of advertisements to telephone
    facsimile machines by or on behalf of your business. For each such
    complaint, lawsuit or enforcement action, include the following
    information:

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a.  The date the action was initiated;

b.  The identity of the initiating party;

c.  The forum in which the complaint or enforcement action was
    initiated;

d.  Whether the action involves advertisements transmitted by any fax
    broadcaster, including Fax.com;

e.  Any response to the action by or on behalf of your company or any
    fax broadcaster, including Fax.com;

f.  Any monetary payments made in response to or in settlement of the
    action;

g.  Any ruling or agreement resolving the action.

> Provide any relevant documents.

5.  Describe in detail any legal action you have initiated against any
    fax broadcaster, including Fax.com, related to

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a.  The fax broadcaster's transmission of advertisements to telephone
    facsimile machines on your business's behalf; or

b.  The fax broadcaster's marketing of its fax broadcasting service.

> Provide any relevant documents.

We encourage you to furnish any additional documents or provide a
statement of any other facts that you believe may be relevant to this
inquiry.

Finally, you are directed to provide an affidavit or declaration
pursuant to 28 U.S.C.

§ 1746 and 47 C.F.R. § 1.16, signed by an authorized officer of your
business, which states that all of the documents and information
requested by this letter which are in your possession, custody, control,
or knowledge have been produced, and which certifies that the
information produced is true and correct. You should be aware that the
knowing and willful making of any false statement, or the concealment of
any material fact, in reply to this Citation and Letter of Inquiry is
punishable by fine or imprisonment under 18 U.S.C. § 1001.

Your response to this inquiry and any written response to the citation
should be submitted no later than 21 days from the date of this letter
to:

> Kurt Schroeder

Deputy Chief

Telecommunications Consumers Division

Enforcement Bureau

Federal Communications Commission

445 - 12^th^ Street, S.W.

Washington, D.C. 20554

Please reference EB-02-TC-155 when corresponding with the Commission
regarding these matters.

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 in response to the Citation and Letter of
Inquiry.

Thank you for your prompt cooperation and assistance in this matter. You
may contact Mary Romano at (202) 418-0975 or Mr. Schroeder at (202)
418-0966 if you have any questions about this inquiry.

Colleen Heitkamp

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 U.S.C. § 227(b)(1)(C); 47 C.F.R. § 64.1200(a)(3).

[^3]: 47 U.S.C. § 227(a)(4); 47 C.F.R. § 64.1200(f)(5).

[^4]: *Rules and Regulations Implementing the Telephone Consumer
    Protection Act of 1991*, Report and Order, 7 FCC Rcd 8752, 8779 n.
    87 (1992) (*TCPA Report and Order*); *Rules and Regulations
    Implementing the Telephone Consumer Protection Act of* 1991,
    Memorandum Opinion and Order, 10 FCC Rcd 12391, 12408 (1995) (*TCPA
    Memorandum Opinion and Order*).

[^5]: ^?^ *TCPA Memorandum Opinion and Order*, 10 FCC Rcd 12391,
    12408*.*