Federal Communications Commission February 12, 2009 VIA CERTIFIED MAIL AND REGULAR MAIL RETURN RECEIPT REQUESTED Proficient Marketing LLC Attn: Mitch Schwartz 801 HWY 40 Victoria, KS 67671 Proficient Marketing LLC 1001 HWY 40 Victoria, KS 67671 RE: File No. EB-09-TC-043 Dear Mr. Schwartz: 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, you may appeal this citation. In addition, future violations of the Act or Commission’s rules in this regard may subject you and your company to monetary forfeitures.2 Attached are consumer complaints regarding prerecorded messages delivered by your company, acting under your direction. These complaints indicate that you and your company have violated section 227(d)(3)(B) of the Act and section 68.318(c) of the Commission’s rules by delivering prerecorded messages that failed to disconnect promptly when the called party hung up. See 47 U.S.C. § 227(d)(3)(B); 47 C.F.R. § 68.318(c). 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 prerecorded messages to residential telephone lines. 2 We have attached 1 complaint(s) at issue in this citation. Within the complaint(s) is the telephone number 785-735- 6099, which your business utilized during the time period at issue. FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, D.C. 20554 Federal Communications Commission 2 Under Section 227(d)(3)(B) of the Act and section 68.318(c) of the Commission’s rules, automatic telephone dialing systems that deliver recorded messages must release the called party’s telephone line within five seconds of the time that notification is transmitted to the system that the called party has hung up. Separately, it appears that you and your company have also violated other Commission rules that govern all prerecorded messages. Under section 64.1200(b), prerecorded messages must, at the beginning of the message, state clearly the identity of the business (the name under which the business is registered to conduct business with the State Corporation Commission or comparable regulatory authority), individual, or other entity that is responsible for initiating the call. In addition, the telephone number3 or address of such business, or individual, or other entity must be provided either during or after the prerecorded message. According to the attached information received by the Commission, it appears that your telephone solicitation(s) did not contain all of the required information. 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 occurring before September 2, 2008, and $16,000 for each such violation or each day of a continuing violation occurring on or after September 2, 2008.4 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. You may use this response to appeal this citation. For example, you may claim that you can document that you had an established business relationship with the called party at the time of the call or that you are a tax-exempt nonprofit organization. In addition, your response should specify the actions that you are taking to ensure that you do not violate the Commission’s rules governing prerecorded messages, as described above. You may schedule a personal interview at the nearest Commission field office. These offices are located in: Atlanta, GA; Boston, MA; Chicago, IL; Columbia, MD; Dallas, TX; Denver, CO; Detroit, MI; Kansas City, MO; Los Angeles, CA; New Orleans, LA; New York, NY; Philadelphia, PA; San Diego, CA; San Francisco, CA; Seattle, WA; and Tampa, 3 Any telephone number so provided may not be for (1) an autodialer or prerecorded message player that placed the call, (2) a 900 number, or (3) any other number for which charges exceed local or long distance transmission charges. In addition, any such telephone number provided in connection with a prerecorded sales messages to a residential telephone subscriber must permit any individual to make a do-not-call request during regular business hours for the duration of the telemarketing campaign. 4 See 47 C.F.R. §1.80(b)(3); Amendment of Section 1.80 of the Commission’s Rules and Adjustment of Forfeiture Maxima to Reflect Inflation, 15 FCC Rcd 18221 (2000) (forfeiture maximum set at $11,000 for violators who are not common carriers or other entities specifically designated in section 503 of the Act); Amendment of Section 1.80(b) of the Commission’s Rules and Adjustment of Forfeiture Maxima to Reflect Inflation, 19 FCC Rcd 10945 (2004) (amendment of section 1.80(b) to reflect inflation left the forfeiture maximum for this type of violator at $11,000); Amendment of Section 1.80(b) of the Commission’s Rules, Adjustment of Forfeiture Maxima to Reflect Inflation, FCC 08-154, rel. June 13, 2008 (amendment of section 1.80(b) to reflect inflation increased the forfeiture maximum for this type of violator to $16,000, effective September 2, 2008). Federal Communications Commission 3 FL. Please call Al McCloud at 202-418-2499 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 445-12th Street, S.W. Rm. 4-C222 Washington, D.C. 20554 Reference EB-09-TC-043 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