![](media/image1.png){width="1.2902777777777779in"
height="1.229861111111111in"} [May 31, 2001]{.smallcaps}

# Mr. Bernie Stevens Mr. Bernie Stevens

Chief Executive Officer Chief Executive Officer

Mr. Todd Pfister Mr. Todd Pfister

Chief Operating Officer Chief Operating Officer

Ms. Sherry King Ms. Sherry King

Independent Agent Network, Inc. Independent Agent Network, Inc.

Route 327 Cedar Neck Route 7 & Bayservice Road, P.O. Box 1571

Oceanview, Delaware 19970 Oceanview, Delaware 19970

RE: EB-01-TC-020

Dear Correspondents:

This is an official **CITATION**, issued pursuant to section 503(b)(5)
of the Communications Act of 1934, as amended (Communications Act), for
possible 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 transmitted to a
telephone facsimile machine at the Federal Communications Commission an
unsolicited advertisement for products, goods, or services offered by
Best Telecom, Inc. (see attachment). 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]

Although entities that merely transmit facsimile messages on behalf of
others are not liable for compliance with the prohibition on faxing
unsolicited advertisements,[^7] the exemption from liability does not
exist when a fax transmitter has "'a high degree of involvement or
actual notice of an illegal use and \[has\] fail\[ed\] to take steps to
prevent such transmissions.'"[^8] Accordingly, fax transmitters do not
enjoy an absolute exemption from liability under the TCPA and the
Commission's Rules.

[This citation serves as notice that the unsolicited facsimile
advertisements sent by Best Telecom, Inc. and transmitted by your
company violate the TCPA and the Commission's Rules. The Commission may
assess to your company monetary forfeitures not to exceed \$11,000 for
each subsequent violation if (1) your company has been highly involved
on behalf of the sender of any unsolicited facsimile advertisements, or
(2) your company continues to transmit facsimile advertisements for Best
Telecom, Inc. without taking steps to ensure that the sender has
obtained permission from recipients to fax the
advertisements.]{.underline}

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 either the FCC's
headquarters location at 445-12^th^ Street, S.W., Washington, D.C. 20554
or the Columbia office 9200 Farm House Lane, Columbia, Maryland 21046.
You may contact the headquarters or Columbia locations by telephone at
202-418-7320 or 301-725-1996, respectively. You must schedule this
interview to take place 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

Please reference EB-01-TC-020 when corresponding with the Commission.

If you choose to submit a written statement, you should discuss in
detail your company's involvement in faxing advertisements on behalf of
Best Telecom, Inc., including any specific arrangements under which you
transmit their advertisements. Please provide copies of any contracts or
agreements that memorialize the terms and conditions under which you fax
for Best Telecom, Inc. You should also answer the following questions:

1.  Has your company had any control over or involvement in determining
    the content of advertisements transmitted by facsimile on behalf of
    Best Telecom, Inc. or any other entities on whose behalf you
    transmit advertisements by facsimile? Please describe such control
    or involvement in detail.

2.  Who provided, compiled, or generated the distribution list(s) of
    telephone facsimile numbers that your company has used to transmit
    advertisements on behalf of Best Telecom, Inc. or any other entities
    on whose behalf you transmit advertisements by facsimile?

3.  If your company has been involved in any way in providing,
    compiling, generating, or editing the distribution list(s) of
    telephone facsimile numbers that your company has used to transmit
    advertisements on behalf of Best Telecom, Inc. or any other entities
    on whose behalf you transmit advertisements by facsimile, describe
    in detail the process by which your company produces or participates
    in the generation of such list(s). Does your company employ or
    compensate any individuals or entities outside the company,
    including any tax-exempt nonprofit organizations, for any service,
    activity, assistance, or facilities used in connection with your
    company's providing, compiling, generating, or editing of such
    list(s)? Please describe such arrangements in detail.

4.  If your company has been involved in any way in providing,
    compiling, generating, or editing the distribution list(s) of
    telephone facsimile numbers that your company has used to transmit
    advertisements on behalf of Best Telecom, Inc. or any other entities
    on whose behalf you transmit advertisements by facsimile, what steps
    has your company taken to ensure that the telephone facsimile
    numbers belong to individuals or entities who have agreed, by
    explicit consent or by virtue of an established business
    relationship with the advertiser, to receive the advertisement?
    Please describe in detail the manner in which you record consumers'
    consent or the existence of an established business relationship and
    provide copies of any written record-keeping policies with respect
    to maintaining evidence of such consent or business relationship.

5.  Does your company advertise its fax transmittal services, and, if
    so, by what means? Please provide copies of all print, audio, and
    video materials that have been used within the past year to
    advertise your company's fax transmittal services. For each
    advertisement, list the media in which the advertisement appeared
    and the date(s) of such appearance(s).

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).

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

[^5]: *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*).

[^6]: ^?^ *TCPA Memorandum Opinion and Order*, 10 FCC Rcd 12391,
    12408*.*

[^7]: *Id.* at 12407.

[^8]: *TCPA Report and Order*, 7 FCC Rcd 8752, 8780 (1992) (quoting *Use
    of Common Carriers*, 2 FCC Rcd 2819, 2820 (1987).)