FCC Record, Volume 26, No. 19, Pages 14991 to 15893, October 24-November 10, 2011

company; (3) "lead information" relating to T. Morris; and (4) contact information for T. Morris and
another person allegedly associated with the Morris family or the business Real Kids.'7
Ill. DISCUSSION
9. We now assess the $9,000 penalties proposed in the two NALs. In doing so, we find that
AMS has not adequately shown that it did, in fact, have an "established business relationship" with the
complainants, or that it obtained their fax numbers permissibly under the Commission's rules.
10. Under the Commission's rules, a person may not fax an unsolicited ad unless the sender
and the recipient have an "established business relationship" ("EBR") and certain other conditions are
satisfied. An EBR is defined as:
a prior or existing relationship formed by a voluntary two-way communication between a
person or entity and a business or residential subscriber with or without an exchange of
consideration, on the basis of an inquiry, application, purchase or transaction by the
business or residential subscriber regarding products or services offered by such person
or entity, which relationship has not been previously terminated by either party.'
A fax may be sent to a person with whom the sender has an EBR only if the sender obtained the
recipient's fax number through "voluntary communication of such number by the recipient directly to the
sender, within the context of such established business relationship" or through a "directory,
advertisement, or site on the Internet to which the recipient agreed to make available its facsimile number
for public distribution."" The Commission has made clear that the entity sending an unsolicited fax ad is
responsible for demonstrating the existence of the established business relationship, for example, through
relevant business records such as purchase agreements and application records.," Thus, AMS bears the
burden of demonstrating a voluntary two-way communication on the basis of an inquiry, application.
purchase, or transaction?'
1I. AMS has not satisfied its burden of proof. As we pointed out in the second NAL, the fact
that AMS has contact information for someone at a company to which it sent a fax advertisement is
insufficient to show that it formed a relationship with the company through a voluntary two-way
communication, on the basis of an inquiry or transaction. Indeed, contact information is little more than
that necessary for AMS to fax an unsolicited ad in the first place. Simple "lead information" pertaining to
an individual likewise does not demonstrate an EBR between AMS and that individual, as AMS could
have acquired this information through means other than an ERR, such as from another company that
provides sales leads. An affidavit attesting to a relationship of some unspecified type between AMS and a
company or individual similarly fails to establish that AMS had an EBR with that company or
7 Id. at 3-8. The lead information xas contact information, plus certain additional personal information.
19 47 C.FR. 64.1200(f)(5). See .so 47 U.S C. 227(a)(2).
19 47 ('.F.R. 64.1200(a)(3). In addition, for a person to fax an unsolicited ad under the Commission's rules, the ad
must notify the recipient how to opt out of receiving Future such ads, and do so in compliance with certain
requirements.
SRules mand Regultlions Inidmenting tlhe ldiehlphuon, (.rsiner Prote tioon t I of 1991. /Junk Fax Preventon Actl.
Report and O)rder and Third Ordcr on Rcconsideration, CG Docket Nos. 02-278. 05-338, 21 FCC Rcd 3787, 3793-
94 para. 12 (2006) (Junk Ftr Prevention ActL R&O).
Sei Jun'. k F r Prevertionlct R&O 2 1 FCC Red at 3796 para. 15 ( "senders of facsimile advertisements must
have an EBR with the recipient in order to send the advertisements to the recipient's facsimile number. The fact that
the facsimile number was made available in a directory, advertisement or website does not alone entitle a person to
send a tacsimile advertisement to that number.").

15071

Federal Communications Commission

DA 11-1777

United States. Federal Communications Commission. FCC Record, Volume 26, No. 19, Pages 14991 to 15893, October 24-November 10, 2011. Washington D.C.. UNT Digital Library. http://digital.library.unt.edu/ark:/67531/metadc133013/. Accessed September 15, 2014.