![](media/image1.png){width="1.2902777777777779in"
height="1.229861111111111in"} November 8, 2006

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

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

Business Payment Systems, LLC

Attn: Sam Chanin, CEO

150 Broadway, Floor 3

New York, New York 10038-4374

Business Payment Systems, LLC

Attn: Sam Chanin, CEO

660 White Plains Road, 400

Tarrytown, New York 10591

RE: EB-06-TC-1630

Dear Mr. Chanin:

This is an official **CITATION**, issued pursuant to section 503(b)(5)
of the Communications Act of 1934, as amended (the Act), 47 U.S.C. §
503(b)(5), for violations of the Act and the Federal Communications
Commission's rules that govern telephone solicitations and unsolicited
advertisements.[^1] As explained below, future violations of the Act or
Commission's rules in this regard may subject you and your company to
monetary forfeitures.

It has come to our attention that your company, acting under your
direction, apparently sent one or more unsolicited advertisements to
telephone facsimile machines in violation of Section 227(b)(1)(C) of the
Communications Act, as described in the attached complaint(s). [^2]
Section 227(b)(1)(C) 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." [^3] As relevant here, an "unsolicited
advertisement" is "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] Under Commission rules and orders in effect during the
relevant period here, the Commission considered an established business
relationship between a fax sender and recipient to constitute 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]

**[If, after receipt of this citation, you or your company 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}**

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, (2) a written statement, or
(3) a teleconference interview with the Commission's Telecommunications
Consumers Division in Washington, DC. 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.

**Please contact Al McCloud at (202) 418-2499 to arrange for an
interview at the closest field office, 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 EB-06-TC-1630 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 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. We refer in this citation to the Commission's rules as
    they existed at the time of the violations in this matter. Revised
    rules in this area took effect on August 1, 2006. 47 U.S.C. §
    64.1200(a)(3); *Rules and Regulations Implementing the Telephone
    Consumer Protection Act of 1991 -- Junk Fax Protection Act of 2005*,
    Report and Order and Third Order on Reconsideration, 21 FCC Rcd 3787
    (2006) (*2006 TCPA Report and Order*).

[^2]: We have attached 3 complaints at issue in this citation. At least
    8 additional similar complaints are not attached but are available
    from the FCC's complaint database. The complaints address facsimile
    advertisements that contain the telephone number 800-303-7020, which
    your business held during the time period at issue.

[^3]: 47 U.S.C. § 227(b)(1)(C); *see also* 47 C.F.R. § 64.1200(a)(3)
    (providing that no person or entity may . . . use a telephone
    facsimile machine, computer, or other device to send an unsolicited
    advertisement to a telephone facsimile machine). 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*).

[^4]: 47 U.S.C. § 227(a)(4) (1991); 47 C.F.R. § 64.1200(f)(10) (2003);
    *see* 47 U.S.C. § 227 (a)(4) (2005); 47 C.F.R. § 64.1200(f)(13)
    (2006) (amending the definition of "unsolicited advertisement" to
    specify that prior express invitation or permission may be "in
    writing or otherwise").

[^5]: *See* *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*). The Junk
    Fax Prevention Act of 2005, Pub. L. 109-21, 119 Stat. 359 (2005),
    and the Commission's parallel rules, which took effect August 1,
    2006, further specify the conditions under which an established
    business relationship provides an exception to the prohibition on
    unsolicited fax advertising.

[^6]: *1995 Reconsideration Order*, 10 FCC Rcd at 12408-09; s*ee also
    2003 TCPA Report and Order*, 18 FCC Rcd at 14128 (concluding that
    mere publication of a fax number in a trade publication or directory
    does not demonstrate consent to receive fax advertising).