![](media/image1.png){width="1.2902777777777779in"
height="1.229861111111111in"} April 1, 2004

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

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

**[AND FACSIMILE]{.underline}**

Network Fax, Inc. Network Fax, Inc.

d.b.a. Network Fax Corporation d.b.a. Network Fax Corporation

d.b.a. Network Fax d.b.a. Network Fax

14543 Highway 105 W., #201 P.O. Box 100

Conroe, Texas 77304 Scott, Louisiana 70583-0100

Attn: Bill Nieman, Owner Attn: Bill Nieman, Owner

Michael Clements, President Michael Clements, President

Network Fax, Inc. Network Fax, Inc.

d.b.a. Network Fax Corporation d.b.a. Network Fax Corporation

d.b.a. Network Fax d.b.a. Network Fax

2425 West Loop South 1000 Fm 1960 Road W.

Suite 1000, 10^th^ Floor Houston, Texas 77090-2508

Houston, Texas 77027-4210 Attn: Bill Nieman, Owner

Attn: Bill Nieman, Owner Michael Clements, President

Michael Clements, President

> RE: EB-04-TC-052

Dear Correspondents:

This is an official **CITATION** and **LETTER OF INQUIRY**[^1] related
to violations of the Communications Act of 1934, as amended, and the
Federal Communications Commission's rules that govern telephone
solicitations and unsolicited advertisements.[^2] As explained below,
future violations of the Act or Commission's rules in this regard may
subject you to monetary forfeitures.

It has come to our attention that your company sent one or more
unsolicited advertisements to telephone facsimile machines in violation
of section 227(b)(1)(C) of the Communications Act and section
64.1200(a)(3) of the Commission's rules.[^3] As explained in detail
below, these provisions generally prohibit the delivery of unsolicited
advertisements to telephone facsimile machines.

We direct you to respond to this Citation and Letter of Inquiry by
providing the information and documents specified below no later than 30
days after the date of this correspondence.

I.  **CITATION FOR VIOLATIONS OF 47 U.S.C. § 227(b)(1)(C)**

> **AND 47 C.F.R. § 64.1200(a)(3)**

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." [^4] 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."[^5] 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.[^6] Mere
distribution or publication of a fax number, however, does not establish
consent to receive advertisements by fax.[^7]

Because your advertisement(s) promotes fax broadcasting services, you
should be aware of the Commission's rules governing such activities.
Although entities that merely transmit or "broadcast" facsimile messages
on behalf of others are not generally liable for compliance with the
prohibition on faxing unsolicited advertisements, the exemption from
liability does not exist when a facsimile broadcaster[^8] demonstrates
"a high degree of involvement in, or actual notice of, the unlawful
activity and fails to take steps to prevent such facsimile
transmissions."[^9] Supplying the telephone facsimile numbers to which
messages are sent or influencing the content of the fax message evidence
a high degree of involvement. Therefore, in certain circumstances, fax
broadcasters may be held liable for unsolicited advertisements that they
transmit to telephone facsimile machines on behalf of other entities.
Accordingly, you may be subject to monetary forfeitures for unsolicited
advertisements that you transmit on behalf of your customers if you are
highly involved in this activity, as evidenced by such actions as
supplying the telephone facsimile numbers to which you transmit
unsolicited advertisements or influencing the content of such fax
messages.

In addition to the violation identified above, it appears that your
company also has violated the provisions of the Act and the Commission's
rules that 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."[^10] As a fax broadcaster, you should also be
aware that you may be required to include your own identification
information on fax messages that you transmit for your customers.
Section 63.318(d) of the Commission's rules requires that a fax
broadcaster with a high degree of involvement in the messages it
transmits to include on each message the name under which it is
registered to conduct business with the relevant State Corporation
Commission or comparable regulatory authority.

**[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}** [^11]

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 Houston Office
in Houston, Texas. Please call Senetta Lancaster at (202) 418-7320 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 include any written statement with your answers to the inquiries
set forth in section II of this correspondence, and direct such
statement to the address provided below.**

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).

**II. INQUIRY REGARDING FAX BROADCASTING ACTIVITIES**

We direct your Company, pursuant to sections 4(i), 4(j), and 403 of the
Act, 47 U.S.C. §§ 154(i), 154(j), 403, to provide the information and
Documents, where relevant, specified herein within 30 calendar days from
the date of this letter.

**[Instructions]{.underline}**

If the Company requests that any information or Documents, as defined
herein, responsive to this letter be treated in a confidential manner,
it shall submit, along with all responsive information and Documents, as
defined herein, a statement in accordance with Section 0.459 of the
Commission\'s rules. 47 C.F.R. § 0.459. Requests for confidential
treatment must comply with the requirements of Section 0.459, including
the standards of

specificity mandated by Section 0.459(b). Accordingly, "blanket"
requests for confidentiality of a large set of documents are
unacceptable. Pursuant with Section 0.459(c), the Bureau will not
consider requests that do not comply with the requirements of Section
0.459.

If the Company withholds any information or Documents under claim of
privilege, it shall submit, together with any claim of privilege, a
schedule of the items withheld that states, individually as to each such
item, the numbered inquiry 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 ground(s) for claiming that the item is
privileged.

Each requested Document not subject to a claim of privilege shall be
submitted in its entirety, even if only a portion of that Document is
responsive to an inquiry made herein. 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 written materials necessary to understand
any Document responsive to these inquiries must also be submitted.

If a Document responsive to any inquiry made herein existed but is no
longer available, or if the Company is unable for any reason to produce
a Document responsive to any inquiry, identify each such Document by
author, recipient, date, title, and specific subject matter, and explain
fully why the Document is no longer available or why the Company is
otherwise unable to produce it.

With respect only to Documents responsive to the specific inquiries made
herein and any other Documents relevant to those inquiries , the Company
is directed to retain the originals of those Documents for twenty-four
(24) months from the date of this letter unless (1) the Company is
directed or informed by the Enforcement Bureau in writing to retain such
Documents for some other period of time or (2) the Enforcement Bureau
and/or the Commission releases any item on the subject of this
investigation, including, but not limited to, a Notice of Apparent
Liability for Forfeiture or an order disposing of the issues in the
investigation, in which case, the Company must retain all such Documents
until the matter has been finally concluded by payment of any monetary
penalty, satisfaction of *all* conditions, expiration of all possible
appeals, conclusion of any collection action brought by the United
States Department of Justice or execution and implementation of a final
settlement with the Commission or the Enforcement Bureau.

The specific inquiries made herein are continuing in nature. The Company
is required to produce in the future any and all Documents and
information that are responsive to the inquiries made herein but not
initially produced at the time, date and place specified herein. In this
regard, the Company must supplement its responses (a) if the Company
learns that, in some material respect, the Documents and information
initially disclosed were incomplete or incorrect or (b) if additional
responsive Documents or information are acquired by or become known to
the Company after the initial

production. The requirement to update the record will continue for
twenty-four (24) months from the date of this letter unless (1) the
Company is directed or informed by the Enforcement Bureau in writing
that the Company's obligation to update the record will continue for
some other period of time or (2) the Enforcement Bureau and/or the
Commission releases an item on the subject of this investigation,
including, but not limited to, a Notice of Apparent Liability for
Forfeiture or an order disposing of the issues in the investigation, in
which case the obligation to update the record will continue until the
release of such item.

For each Document or statement submitted in response to the inquiries
below, indicate, by number, to which inquiry it is responsive and
identify the person(s) from whose files the Document was retrieved. If
any Document is not dated, 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(s) of the author(s) or recipient(s). The Company must
identify with reasonable specificity all Documents provided in response
to these inquiries.

Unless otherwise indicated, the period of time covered by these
inquiries begins one year before the date of this letter and ends with
the date of the Company's response.

**[Definitions]{.underline}**

For purposes of this letter, the following definitions apply:

\"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.\"

\"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 taped, recorded, transcribed,
written, typed, printed, 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,
letter, 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).

"Company" shall include the Company as noted on page 1 of this letter,
and any predecessor-in-interest, successor‑in‑interest, affiliate,
parent company, any wholly or partially owned subsidiary, or other
affiliated company(s) or business(es), and all owners, including but not
limited to, partners or principals, 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.

1.  Provide any generic service contracts or agreements that relate to
    the Company's fax broadcasting services.

2.  Does the Company disclose to customers or potential customers that
    sending unsolicited advertisements to telephone facsimile machines
    is unlawful? Provide all relevant documents.

3.  Does the Company have any control over or involvement in determining
    the content of advertisements that it transmits by facsimile on
    behalf of other entities? Describe such control or involvement in
    detail and provide all relevant documents.

4.  Who provides, compiles, or generates the distribution list(s) of
    telephone facsimile numbers the Company uses in its fax broadcasting
    services? Provide all relevant documents.

5.  If the Company is involved in any way in providing, compiling,
    generating, or editing the distribution list(s) of telephone
    facsimile numbers used to transmit advertisements on behalf of other
    entities, describe in detail the process by which the Company
    produces or participates in the generation of such list(s). Does the
    Company employ or compensate any individuals or entities outside the
    Company for any service, activity, assistance, or facilities used in
    connection with providing, compiling, generating, or editing of such
    list(s)? Describe such arrangements in detail and provide all
    relevant documents.

6.  If the Company is involved in any way in providing, compiling,
    generating, or editing the distribution list(s) of telephone
    facsimile numbers used to transmit advertisements on behalf of other
    entities, what steps has the 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 to receive the advertisements? Describe in
    detail the manner in which the Company records consumers\' consent
    or the existence of an established business relationship. Provide
    all relevant documents.

We direct the Company to support its responses with an affidavit or
declaration under penalty of perjury, signed and dated by an authorized
officer of the Company with personal knowledge of the representations
provided in the Company's response, verifying the truth and accuracy of
the information therein and that all of the Documents and

information requested by this letter which are in the Company's
possession, custody, control or knowledge have been produced. If
multiple Company employees contribute to the response, in addition to
such general affidavit or declaration of the authorized officer of the
Company noted above, provide separate affidavits or declarations of each
such individual that identify clearly to which responses the affiant or
declarant is attesting. All such declarations provided should comply
with section 1.16 of the Commission's rules, 47 C.F.R. § 1.16, and be
substantially in the form set forth therein.

The Company should direct its response to the attention of

Kurt A. Schroeder

Deputy Chief

Telecommunications Consumers Division

Enforcement Bureau

Federal Communications Commission

445-12^th^ Street, S.W., Rm. 3-C366

Washington, D.C.

20554

**Reference EB-04-TC-052 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 in response to the Citation and Letter of
Inquiry.

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.

Thank you in advance for your anticipated cooperation.

Sincerely,

Kurt A. Schroeder

> Deputy Chief, Telecommunications Consumers Division

Enforcement Bureau

Federal Communications Commission

Enclosures

[^1]: These actions are taken pursuant to 47 U.S.C. §§ 154(i), 403,
    503(b)(5).

[^2]: 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.

[^3]: The advertisement(s) promotes your fax broadcasting services.

[^4]: 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)(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*).

[^5]: 47 U.S.C. § 227(a)(4); 47 C.F.R. § 64.1200(f)(10).

[^6]: *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 January 1, 2005.
    *Rules and Regulations Implementing the Telephone Consumer
    Protection Act of 1991*, Order on Reconsideration, 18 FCC Rcd 16972
    (2003); *Rules and Regulations Implementing the Telephone Consumer
    Protection Act of 1991*, Order, FCC 03-230 (rel. Oct. 3, 2003). 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.

[^7]: *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).

[^8]: The term "facsimile broadcaster" means "a person or entity that
    transmits messages to telephone facsimile machines on behalf of
    another person or entity for a fee." 47 C.F.R. § 64.1200(f)(4).

[^9]: 47 C.F.R. § 64.1200(a)(3)(ii); *2003 TCPA Report and Order*, 18
    FCC Rcd at 14129.

[^10]: 47 U.S.C. § 227(d)(1)(B); 47 C.F.R. § 68.318(d).

[^11]: *See* 47 C.F.R. § 1.80(b)(3).