*Pages 1--2 from  Microsoft Word - 24830.doc*
 February  4,  2003 
 ELF  Painting  and  Wallpapering  10309  Cherry  View  Court 
 Oakton,  Virginia  22124-  2530  Attention:  Ed  Faust,  Owner 

 RE:  EB-  03-  TC-  004 
 Dear  Mr.  Faust: 
 This  is  an  official  CITATION  issued  pursuant  to  section  503(  b)(  5)  of  the  Communications  Act  of  1934,  as  amended  (the  Communications  Act),  47  U.  S.  C.    503(  b)(  5). 

 It  has  come  to  our  attention  that  your  company  recently  sent  one  or  more  unsolicited  advertisements  to  telephone  facsimile  machines  (see  attachment).  1  Pursuant  to  the  Telephone 
 Consumer  Protection  Act  of  1991  (TCPA)  and  the  Commissions  rules,  it  is  unlawful  to  use  a  telephone  facsimile  machine,  computer,  or  other  device  to  send  an  unsolicited  advertisement  to 
 a  telephone  facsimile  machine.  47  U.  S.  C.    227(  b)(  1)(  C);  47  C.  F.  R.    64.1200(  a)(  3). 
 Please  be  advised  that  subsequent  violations  of  the  Communications  Act  or  of  the  Commissions  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.  See  47  C.  F.  R.    1.80(  b)(  3). 
 The  phrase  unsolicited  advertisement  is  defined  in  the  TCPA  and  the  Commissions  rules  as  any  material  advertising  the  commercial  availability  or  quality  of  any  property,  goods, 
 or  services  which  is  transmitted  to  any  person  without  that  persons  prior  express  invitation  or  permission.  47  U.  S.  C.    227(  a)(  4);  47  C.  F.  R.    64.1200(  f)(  5).  Both  the  TCPA  and  the 
 Commissions  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.   

 1  In  addition  to  the  advertisement(  s)  referenced  by  and  attached  to  this  citation,  the  complaining  party  may 
 also  have  included  with  the  complaint  one  or  more  facsimile  advertisements  transmitted  by  other  senders.  This  citation  concerns  only  the  facsimile  advertisement(  s)  referenced  by  and  attached  to  the  citation,  and  your  response 

 only  needs  to  address  such  advertisement(  s). 

 FEDERAL  COMMUNICATIONS  COMMISSION  WASHINGTON,  D.  C.  20554 
1
 64.1200(  f)(  2).  Addressing  the  TCPAs  definition  of  telephone  facsimile  machine,  the  Commission  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,  10  FCC  Rcd  12391,  12405,  para.  29  (1995). 

 Pursuant  to  section  503(  b)(  5)  of  the  Communications  Act,  you  may  request  a  personal  interview  at  the  Commissions  Field  Office  nearest  to  your  place  of  business.  The 
 nearest  office  appears  to  be  the  Columbia  Office  at  9200  Farm  House  Lane,  Columbia,  Maryland  21046,  which  you  can  contact  by  telephone  at  (301)  725-  1996.  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 

 If  you  choose  to  submit  a  written  statement,  your  written  statement  should  specify  what  actions  have  been  taken  to  correct  the  violation(  s)  outlined  above.  Please  reference  EB-  03-  TC-  004  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  Commissions  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  Commissions  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  forfeiture  is  issued,  your  unresponsiveness  will  be  considered  in  our  assessment  of  a  forfeiture  amount. 

 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 

 Enclosure 
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