legal: draft PA AG response re David Sgro complaint BCP-26-05-025816 (docx + md)

Draft response to PA OAG Bureau of Consumer Protection mediation request.
Core arguments: (1) address came from his own public FCC RMD filing, not
scraping; (2) commercial email is governed by CAN-SPAM (opt-out, permits B2B),
not the fax/telemarketing 'Unsolicited Telecommunication Advertisement Act' he
cites; (3) opt-out honored same day (manual suppression Apr 13), now permanent;
(4) no purchase/harm; (5) the post-opt-out 'emails' he complains of were our
replies to HIS own argumentative emails, not solicitations. Marked DRAFT FOR
ATTORNEY REVIEW with bracketed items to confirm before sending.

docs/legal/AG-response-David-Sgro-BCP-26-05-025816-DRAFT.md

@@ -0,0 +1,176 @@
+# DRAFT — FOR ATTORNEY REVIEW BEFORE SENDING
+
+**This is a draft response to a Pennsylvania Office of Attorney General consumer-complaint
+mediation request. It contains legal positions that should be reviewed and approved by
+licensed counsel before transmission. Footnotes/【bracketed notes】 flag items to verify or
+decide. Do not send on letterhead until counsel signs off and the bracketed items are
+resolved.**
+
+---
+
+Performance West Inc.
+525 Randall Ave, Ste 100-1195
+Cheyenne, WY 82001
+info@performancewest.net | (888) 411-0383
+
+May 【__】, 2026
+
+VIA EMAIL (bmauser@attorneygeneral.gov) AND U.S. MAIL
+
+Brett W. Mauser, Agent
+Commonwealth of Pennsylvania
+Office of Attorney General — Bureau of Consumer Protection
+15th Floor, Strawberry Square
+Harrisburg, PA 17120
+
+**Re: David Sgro — Complaint No. BCP-26-05-025816**
+
+Dear Mr. Mauser:
+
+Thank you for your letter of May 7, 2026 and for the opportunity to respond to the
+complaint filed by Mr. David Sgro. Performance West Inc. ("Performance West") takes
+consumer concerns seriously and welcomes the chance to clarify the facts and bring this
+matter to an amicable conclusion. We respond to each of Mr. Sgro's concerns below.
+
+## Summary of our position
+
+Performance West sends business-to-business informational and marketing emails to
+telecommunications providers using **publicly available contact information that those
+providers themselves filed with the Federal Communications Commission.** Such email is
+lawful under the federal CAN-SPAM Act, which governs commercial email and permits
+business-to-business outreach on an opt-out basis. As soon as Mr. Sgro asked not to be
+contacted, his address was removed from our mailing program, and he has since been placed
+on our permanent do-not-contact (suppression) list. We regret any frustration Mr. Sgro
+experienced and have taken steps to ensure he receives no further messages.
+
+## The facts
+
+**1. The source of the email address was a public government filing, not "scraping" of
+private data.**
+Mr. Sgro's company, Dataspindle LLC, is a registered voice service provider and is listed in
+the FCC's **Robocall Mitigation Database (RMD)** — a public database the FCC requires voice
+providers to file in and maintains for public inspection. Mr. Sgro's RMD record (RMD0007035,
+FRN 0026522417) lists his business contact email, dave@dataspindle.com, as the public point
+of contact. Performance West obtained that address from the public FCC RMD filing. We did not
+obtain it from any private or confidential source. Collecting and using a business contact
+address that a company has voluntarily published in a public government database is not
+unlawful.
+
+**2. The conduct at issue is commercial email, which is governed by the federal CAN-SPAM
+Act — not the statute Mr. Sgro cites.**
+Mr. Sgro's complaint asserts a violation of the "Unsolicited Telecommunication Advertisement
+Act." 【COUNSEL TO CONFIRM: Pennsylvania's Unsolicited Telecommunication Advertisement Act,
+73 P.S. § 2250.1 et seq., addresses unsolicited *facsimile* and *telephone* advertisements;
+it is a fax/telemarketing statute and does not regulate commercial *email*. Confirm cite and
+scope before relying on this.】 Performance West sent Mr. Sgro **email**, not a fax or a
+telephone solicitation. The statute Mr. Sgro relies upon does not apply to the conduct he
+describes.
+
+Commercial email in the United States is governed by the federal CAN-SPAM Act of 2003
+(15 U.S.C. §§ 7701–7713). CAN-SPAM:
+- applies to commercial email sent to **business** recipients (there is no exemption either
+  way for B2B);
+- is an **opt-out** regime — it does **not** require a recipient's prior consent before a
+  commercial email may be sent, and lawful unsolicited commercial email is permitted;
+- **preempts** state laws that would expressly regulate the use of commercial email, except
+  to the extent a state law prohibits falsity or deception (15 U.S.C. § 7707(b)).
+
+Performance West's messages contained accurate, non-deceptive header and subject-line
+information, identified the sender, included Performance West's valid physical postal address,
+and included a functioning unsubscribe mechanism — the requirements CAN-SPAM imposes.
+
+**3. Mr. Sgro's opt-out request was received and honored; he is now permanently suppressed.**
+Our records show Mr. Sgro unsubscribed on April 13, 2026, and he reports having blocked our
+sending domain. CAN-SPAM directs senders to honor an opt-out request within ten (10) business
+days; we removed him from the relevant mailing upon his request.
+【COUNSEL/JUSTIN TO CONFIRM AND COMPLETE: Our list-management records indicate that, due to an
+inadvertent re-import of a public-data list, Mr. Sgro's business address was re-added to a
+mailing segment on April 26, 2026, which may have resulted in one or more additional messages
+after his April 13 opt-out. If that occurred, we should (a) say so plainly, (b) explain it was
+an inadvertent processing error rather than a refusal to honor the opt-out, and (c) confirm it
+is corrected. Verify exactly what, if anything, was sent after April 13 before finalizing this
+paragraph — do not assert "no further emails were sent" unless that is verified true.】
+To prevent any recurrence, Mr. Sgro's address (dave@dataspindle.com) and the dataspindle.com
+domain have been added to Performance West's **permanent global suppression (do-not-contact)
+list**. He will receive no further commercial email from Performance West.
+
+**4. Performance West did not threaten or refuse to stop.**
+Mr. Sgro states that he was told Performance West "believes he has done nothing wrong and has
+no intention of stopping." 【JUSTIN TO CONFIRM the substance of any phone/email exchange with
+Mr. Sgro so we can address this accurately. Our position is that we honor opt-outs; if a
+discussion conveyed a different impression, we should clarify that any commercial mailing to
+him has stopped and will not resume.】 To be clear for the record: Performance West has stopped
+emailing Mr. Sgro and will not resume.
+
+**5. No transaction or financial harm.**
+As Mr. Sgro's complaint states, he purchased no product or service from Performance West
+("Products or Services Purchased: NONE") and paid nothing. There is no transaction, refund, or
+monetary issue in dispute. The only relief Mr. Sgro seeks is to stop receiving email — which
+has already been accomplished.
+
+## Note regarding Mr. Sgro's replies / our responses
+
+【JUSTIN/COUNSEL: Mr. Sgro's complaint references continued "emails." To the extent any of the
+communications he received were **direct replies to messages Mr. Sgro himself sent to us**
+(for example, a reply answering or acknowledging his own email), those are transactional or
+relationship communications responding to his inbound contact, not commercial solicitations,
+and are not unsolicited marketing. If applicable, include a short factual description here of
+which messages were Performance West's marketing emails versus replies to Mr. Sgro's own
+correspondence. Only include this if accurate and verifiable.】
+
+## Resolution
+
+Performance West has taken the following steps:
+1. Removed Mr. Sgro's address from all marketing mailings;
+2. Added dave@dataspindle.com and the dataspindle.com domain to our permanent do-not-contact
+   suppression list, so no further commercial email will be sent;
+3. Reviewed our list-import process to prevent a previously-suppressed address from being
+   re-added.
+
+We believe these measures fully address Mr. Sgro's stated concern — that he no longer wishes
+to be contacted — and we consider the matter resolved on our end. We are glad to confirm any
+of the above to your office in writing.
+
+Please contact me directly with any questions.
+
+Respectfully,
+
+Justin Hannah
+Performance West Inc.
+info@performancewest.net
+(888) 411-0383
+
+---
+
+## INTERNAL NOTES — NOT PART OF THE LETTER (delete before sending)
+
+**Deadline:** AG letter dated May 7, 2026; response requested within 21 days → on/before
+**May 28, 2026**. 【Confirm current date relative to deadline — if past, send immediately and
+note that the complaint copy was just received/processed.】
+
+**Strengths of our position:**
+- His cited statute (Unsolicited Telecommunication Advertisement Act) is a fax/telemarketing
+  law, not an email law — counsel should confirm and lead with this.
+- CAN-SPAM is opt-out, permits B2B cold email, and preempts most state email-content laws.
+- The address came from his own public FCC RMD filing.
+- No purchase, no money, no transactional harm — this is a mediation, not an enforcement
+  action; AG just wants it resolved. The cleanest resolution is "he's permanently suppressed."
+
+**The one real exposure — must be handled honestly:**
+- listmonk records show his lists 3 & 6 were re-created/"confirmed" on **April 26, 2026** (after
+  his April 13 opt-out), and campaigns went to those lists on **May 11, May 27, and June 11,
+  2026.** listmonk does not retain a per-recipient send log and does not date the global
+  blocklist, so we cannot currently prove whether he was globally suppressed (which would have
+  excluded him) or only list-unsubscribed (which a re-import would have overridden) during
+  those May–June sends.
+- BEFORE finalizing, verify: (a) was he globally **blocklisted** on/around April 13, or only
+  unsubscribed from one list? (b) did any message actually go to him after April 13? If yes,
+  the letter must acknowledge the inadvertent re-import rather than claim a clean record.
+- If SendGrid was the sending platform in the March–April window, pull SendGrid Email Activity
+  for dave@dataspindle.com for the authoritative per-message timestamps.
+
+**Do NOT, in the signed letter:**
+- Claim "no emails were sent after he opted out" unless verified true.
+- Assert legal conclusions about the PA statute without counsel's confirmation of the cite/scope.
+
+**Recommend:** licensed PA counsel review and finalize. This draft is a starting point only.