United States v. Ebersole

Decision Date29 February 2012
Docket NumberCase No. 3:12-cv-00105
PartiesUNITED STATES OF AMERICA, Plaintiff, v. BRIAN EBERSOLE, individually and as officer of B2B VOICE BROADCASTING, INC. and VOICE MARKETING, INC.; VOICE MARKETING, INC., and B2B VOICE BROADCASTING, INC.; Defendants.
CourtU.S. District Court — District of Nevada
STIPULATED JUDGMENT AND ORDER FOR PERMANENT INJUNCTION

Plaintiff, the United States of America, acting upon notification and authorization to the Attorney General by the Federal Trade Commission ("Commission"), has commenced this action by filing the complaint, and Defendants have waived service of the summons and the complaint. The parties, represented by the attorneys whose names appear hereafter, have agreed to settlement of this action without adjudication of any issue of fact or law and without Defendants admitting liability for any of the violations alleged in the complaint. This document shall not be considered a finding of wrongdoing by Defendants for any purposes, whatsoever.

THEREFORE, on the joint motion of the parties, it is ORDERED, ADJUDGED, AND DECREED as follows:

FINDINGS

1. This Court has jurisdiction over the subject matter and the parties pursuant to 28 U.S.C. §§ 1331, 1337(a), 1345 and 1355, and 15 U.S.C. §§ 45(m)(l)(A), 53(b), and 56(a).

2. Venue is proper as to all parties in this District.

3. The activities of Defendants are in or affecting commerce, as defined in Section 4 of the Federal Trade Commission Act ("FTC Act"), 15 U.S.C. § 44.

4. The complaint states a claim upon which relief may be granted against Defendants, under Sections 5(a), 5(m)(l)(A), and 13(b) of the FTC Act, 15 U.S.C. §§ 45(a), 45(m)(l)(A), and 53(b).

5. Defendants have entered into this Stipulated Judgment and Order for Permanent Injunction ("Order") freely and without coercion. Defendants further acknowledge that they have read the provisions of this Order and are prepared to abide by them.

6. Plaintiff and Defendants waive all rights to appeal or otherwise challenge or contest the validity of this Order.

7. Defendants have agreed that this Order does not entitle Defendants to seek or to obtain attorneys' fees as a prevailing party under the Equal Access to Justice Act, 28 U.S.C.

§ 2412, and Defendants further waive any rights to attorneys' fees that may arise under said provision of law.

8. Entry of this Order is in the public interest.

DEFINITIONS

For the purpose of this Order, the following definitions shall apply:

1. "Asset" and "Assets" mean any legal or equitable interest in, right to, or claim to, any real or personal property, including, but not limited to, "goods," "instruments," "equipment," "fixtures," "general intangibles," "inventory," "checks," or "notes," (as these terms are defined in the Uniform Commercial Code), lines of credit, chattels, leaseholds, contracts, mail or other deliveries, shares of stock, lists of consumer names, accounts, credits, premises, receivables, funds, and all cash, wherever located.

2. "Assisting other persons" means providing any of the following goods or services to another person while knowing or consciously avoiding knowing that the person receiving assistance is engaged in an act or practice that is prohibited by this Order: (i) serving as an officer, director, or consultant; (ii) initiating telephone calls for the purpose of delivering recorded messages; (iii) providing or arranging for access to software, equipment that dials stored or generated telephone numbers, or telecommunicationsservices for the purpose of initiating telephone calls that deliver recorded messages; (iv) providing or arranging for access to services that permit alteration of the name of the calling party displayed by caller identification services; (v) providing or acquiring lists of names or telephone numbers for the purpose of contacting persons on the list by telephone; (vi) formulating or providing, or arranging for the formulation or provision of, any script or any other material for communicating with customers or potential customers; or (vii) providing any other substantial help or aid.

3. "Caller identification service" means a service that allows a telephone subscriber to . have the telephone number, and, where available, name of the calling party transmitted contemporaneously with the telephone call, and displayed on a device in or connected to the subscriber's telephone.

4. "Charitable contribution" means any donation or gift of money or any other thing of value.

5. "Corporate Defendants" means Voice Marketing, Inc., a Colorado corporation, its successors and assigns,.and B2B Voice Broadcasting, Inc., a Nevada corporation, its successors and assigns.

6. "Defendants" means Voice Marketing, Inc., B2B Voice Broadcasting, Inc., and Brian Ebersole, individually, collectively, or in any combination.

7. "Do Not Call request" means a statement by a person that indicates that he or she does not wish to receive telephone calls initiated to induce the purchase of goods or services or to solicit charitable contributions.

8. "Established business relationship" means a relationship between the seller and a person based on: (a) the person's purchase, rental, or lease of the seller's goods or services or a financial transaction between the person and seller, within the eighteen (18) months immediately preceding the date of the telemarketing call; or (b) the person's inquiry or application regarding a product or service offered by the seller, within the three (3) months immediately preceding the date of a telemarketing call.

9. "National Do Not Call Registry" means the National Do Not Call Registry, which is the "do-not-call" registry maintained by the Commission pursuant to 16 C.F.R. § 310.4(b)(l)(iii)(B).

10. "Outbound telephone call" means a telephone call initiated by a telemarketer to induce the purchase of goods or services or to solicit a charitable contribution.

11. "Person" means any individual, group, unincorporated association, limited or general . partnership, corporation, or other business entity.

12. "Representatives" means Defendants' officers, agents, servants, employees, attorneys, and those persons in active concert or participation with them who receive actual notice of this Order by personal service or otherwise.

13. "Seller" means any person who, in connection with a telemarketing transaction, provides, offers to provide, or arranges for others to provide goods or services to the customer in exchange for consideration, whether or not such person is under the jurisdiction of the Commission.

14. "Subscriber" means any person that, for consideration, authorizes Defendants to initiate, or arranges for Defendants or their Representatives to assist others in initiating, multiple telephone calls for the purpose of delivering recorded messages, but does not include a person that purchases the right to use software and receives no other good or service from Defendants.

15. "Telemarketer" means any person who, in connection with telemarketing, initiates or receives telephone calls to or from a customer or donor.

16. "Telemarketing" means a plan, program, or campaign which is conducted to induce the purchase of goods or services or a charitable contribution, by use of one or more telephones and which involves more than one interstate telephone call. Telemarketing does not include the solicitation of sales through the mailing of a catalog as set forth in 16 C.F.R. § 310.2(dd) or any other act or practice exempted by 16 C.F.R. § 310.6.

17. "Telemarketing Sales Rule" means the Commission rule titled "Telemarketing Sales Rule," 16 C.F.R. Part 310, attached as Appendix A, or as amended.

ORDER

I. PROHIBITION AGAINST ILLEGAL TELEMARKETING PRACTICES IT IS ORDERED that, in connection with telemarketing, Defendants and their Representatives, whether acting directly or through any entity, corporation, subsidiary, division, affiliate, or other device, are permanently restrained and enjoined from engaging in, causing other persons to engage in, and assisting other persons to engage in, violations of the Telemarketing Sales Rule, including, but not limited to:

A. Initiating any outbound telephone call to any person at a telephone number on the National Do Not Call Registry unless the seller proves that:

1. the seller has obtained the express agreement, in writing, of such person to place calls to that person. Such written agreement shall clearly evidence such person's authorization that calls made by or on behalf of a specific party may be placed to that person, and shall include the telephone number to which the calls may be placed and the signature of that person; or
2. the seller has an established business relationship with such person and that person has not previously stated that he or she does not wish to receive outbound telephone calls made by or on behalf of the seller;

B. Abandoning, or causing others to abandon, any outbound telephone call to a person by failing to connect the call to a live operator within two seconds of the person's completed greeting, unless Defendants or their Representatives prove that the following four conditions are met:

1. Defendants and their Representatives employ technology that ensures abandonment of no more than three percent of all calls answered by a person, measured over the duration of a single calling campaign, if less than thirty days, or separately over each successive 30-day period or portion thereof that the campaign continues;2. Defendants and their Representatives, for each telemarketing call placed, allow the telephone to ring for at least fifteen seconds or four rings before disconnecting an unanswered call;
3. Whenever a live operator is not available to speak with the person answering the call within two seconds after the person's completed greeting, Defendants or their Representatives promptly play a recorded message that states the name and telephone number of the seller on whose behalf the call was placed; and
4. Defendants or their Representatives
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