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Released: August 25, 2009

Federal Communications Commission

FEDERAL COMMUNICATIONS COMMISSION

WASHINGTON, D.C. 20554

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

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).
2

Federal Communications Commission

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
3

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