Federal Communications Commission April 1, 2009 VIA CERTIFIED MAIL AND REGULAR MAIL RETURN RECEIPT REQUESTED Turn Key Solutions Attn: Efran Leyza, President and CEO Nate Villerial 4920 W Thunderbird Road Phoenix, AZ 85306 Re: File No. EB-09-TC-271 Dear Mr. Leyza and Mr. Villerial: 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 telemarketing calls that your company or an entity acting on behalf of your company, acting under your direction, made to residential telephone lines despite previous do-not-call requests by members of the households.3 These complaints indicate that you and your company have violated the Commission’s requirements regarding telemarketing calls in 47 C.F.R. § 64.1200(d). Section 64.1200(d) of the Commission’s rules requires entities that make telemarketing calls to residential telephone subscribers to follow certain procedures to ensure that the 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 one complaint at issue in this citation. Within the complaint is the telephone number 312-380- 5416, which your business utilized during the time period at issue. 3 See attached complaint(s). FEDERALCOMMUNICATIONSCOMMISSION WASHINGTON, D.C. 20554 Federal Communications Commission 2 subscribers are able to stop such calls. Specifically, entities that make telemarketing calls must (1) develop written policies for maintaining a do-not-call list and make such written policies available upon demand; (2) inform and train their personnel engaged in any aspect of telemarketing about the existence and use of the do-not-call list; (3) place consumers who request not to receive telemarketing calls on the do-not-call list; and (4) honor each do-not-call request within a reasonable time from the date of the request, which may not exceed thirty (30) days, for five years from the time the request is made.4 In addition, the Commission has found that it is unlawful to call a residential telephone line to deliver a telemarketing call if any member of the household has made a do-not-call request.5 Under the Commission’s rules, a “telemarketing” call is “the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person.”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 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, 2008.7 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 are exempt from the telephone solicitation rules,8 that you downloaded and used the National Do-Not-Call Registry in compliance with our rules but the person’s telephone number was not on that version of the Registry, or that the calls were made in error and should be covered by the Commission’s safe harbor provisions, 47 C.F.R. § 64.1200(c)(2)(i). In addition, 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. 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; 4 47 C.F.R. § 64.1200(d). 5 Consumer.Net v. AT&T, Order, 15 FCC Rcd 281, 298 (1999). 6 47 C.F.R. § 64.1200(f)(10). 7 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). 8 See 2003 Order, 18 FCC Rcd at 14042-49; 47 C.F.R. § 64.1200(f)(12)(i)-(iii) (exceptions to definition of “telephone solicitation”). Federal Communications Commission 3 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, 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 File No. EB-09-TC-271 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 email 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. Federal Communications Commission 4 Thank you in advance for your anticipated cooperation. Sincerely, Kurt A. Schroeder Deputy Chief, Telecommunications Consumers Division Enforcement Bureau Federal Communications Commission Enclosures