Pillsbury’s communications lawyers have published FCC Enforcement Monitor monthly since 1999 to inform our clients of notable FCC enforcement actions against FCC license holders and others. This month’s issue includes:
- FCC Proposes Largest Robocalling Fine Under TCPA
- Tennessee Broadcaster Fined for Failing to File License Applications for FM Translators
- FCC Fines Rhode Island Broadcaster for Late-Filed License Renewal Application
FCC Proposes $5 Million Robocalling Fine in First Case Under TRACED Act’s TCPA Revisions
The FCC proposed to fine two individuals and a Virginia lobbying firm over $5.13M for apparently making 1,141 illegal robocalls to wireless numbers without the subscribers’ prior express consent. This is the largest Telephone Consumer Protection Act (TCPA) robocall fine ever proposed by the FCC.
The TCPA and Section 64.1200(a)(1)(iii) of the FCC’s Rules prohibit prerecorded voice calls to wireless telephone numbers unless there is an emergency or the subscriber has given prior express consent to receive the call. Additionally, the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (TRACED Act) allows the FCC to issue a Notice of Apparent Liability for Forfeiture (NAL) for violations of Section 227(b) of the Communications Act (the “Act”) without first issuing a warning citation. Due to Congress’s recent amendment of the TCPA, this is the first time the FCC has been able to proceed directly to a proposed fine against a robocaller.
In September 2020, the FCC began receiving complaints about the prerecorded calls at issue. The recorded message in the call told potential voters that if they voted by mail, their “personal information will be part of a public database that will be used by police departments to track down old warrants and be used by credit card companies to collect outstanding debts.”
In cooperation with the Ohio State Attorney General’s Office, the Enforcement Bureau (the “Bureau”) identified the dialing service providers that placed the calls. Subpoena responses from those providers revealed the existence of the robocalling campaign and identified the individuals as the customers who hired the providers to place the calls on their behalf and on behalf of the lobbying firm. Bureau staff determined that 1,141 calls were made to mobile telephone numbers and reached out to the consumers assigned to those numbers. None of the consumers the Bureau contacted stated that they had consented to receive the calls.
In addition to the two individuals, the FCC concluded that the lobbying firm violated Section 227(b) of the Act and Section 64.1200(a)(1)(iii) of the Commission’s Rules. The FCC has held that an entity may be deemed to be the maker of a call if it was “so involved in the placing of a specific telephone call” that it can effectively be found to have initiated it. To determine this, the FCC looks to the “totality of the facts and circumstances surrounding the placing of a particular call” to find “who took the steps necessary to physically place the call” and “whether another person or entity was so involved in placing the call as to be deemed to have initiated it, considering the goals and purposes of the TCPA.”
The FCC also considered factors such as the fact that the prerecorded messages identified both individuals by name, one of the individual’s personal telephone number was listed as the calling party, both individuals admitted their involvement in the calling campaign under oath, and the lobbying firm paid one of the dialing platforms with a company check. The FCC therefore determined that both individuals and the firm were integral to the call campaign and were so involved as to be deemed to have initiated the calls.
In calculating a proposed fine, the FCC considers prior decisions involving unlawful, unsolicited prerecorded calls, and it has on many occasions applied a base fine of $4,500 per call. Though most prior decisions involved a smaller number of calls, the FCC found those cases analogous and saw no reason to deviate from them as precedent. As a result, the FCC proposed a total fine of $5,134,500 ($4,500 per call multiplied by 1,141 calls) for which it found the two individuals and the lobbying firm jointly and severally liable.