Earlier this month, in its war against illegal robocalling campaigns the Federal Communications Commission (FCC) proposed another hefty fine. That is, a fine of 82 million dollars. Yikes!
The target of the FCC’s wrath? Mr. Philip Roesel, who wasn’t just calling a la Adele style.
Instead, Mr. Roesel is accused of both illegal robocalling in violation of the Telephone Consumer Protection Act (TCPA) (for a refresher on the TCPA and robocalls, take a look here) and illegal spoofing, which the FCC claims violated the Truth in Caller ID Act of 2009 (TCIA). For his 21 million illegal robocalls, Mr. Roesel received merely a sternly worded citation from the FCC (more on why later). Following a recent trend, the FCC’s massive $82 million fine proposed against Roesel relied primarily on the TCIA’s prohibition against the transmission of misleading or inaccurate caller ID information, commonly referred to as spoofing, “with the intent to defraud, cause harm or wrongfully obtain anything of value.”
(Sidenote: The “intent” here is important under the TCIA, as not all manipulation of caller ID information is necessarily illegal. For example, the FCC allows telemarketers to transmit caller ID information that corresponds to the actual seller of the goods rather than the telemarketing company that has been hired to place the calls. Telemarketing companies often market goods or services for multiple clients, and different callback numbers could be transmitted depending on whose products or services the telemarketer is selling at that particular time. In these situations, assuming the telemarketing calls themselves are legit, the telemarketer’s manipulation of caller ID information would not necessarily violate the TCIA.)
According to the FCC, Roesel spoofed telephone numbers that weren’t even in service, rather than transmitting an actual number for himself or his company, to place millions of robocalls that particularly targeted the elderly, the infirm, and low-income families for purposes of selling dubious insurance products. The volume of the calls, the intent to aim his campaign at “unsophisticated consumers and consumers in precarious financial situations,” and the violation of the TCIA prompted the FCC to propose the large fine.
What’s unique about this proposed fine is two-fold.
First, the monetary value of the fine itself is one to write home about. While it doesn’t match the record $120 million fine issued earlier this year in another TCIA case, $82 million isn’t chump change. As with past TCIA penalties, the FCC set the base fine for each spoofed call at $1,000, which quickly adds up when there are millions of calls being made each month – though the FCC calculated the proposed fine on only the 82,000 calls verified to have come from spoofed numbers.
Second, this fine is yet another instance where the TCIA has been used by the FCC to issue a penalty against illegal robocallers. It’s a trend that the FCC started not too long ago but is likely to continue into the future for several reasons.
The obvious reason is, unfortunately, that spoofing and illegal robocalling continues to occur.
Efforts have been underway to develop regulatory and technological solutions to help mitigate the potential for such activity; but where there’s a will, there’s a way for those looking to make a quick buck. Thus, TCIA penalties are a way—and perhaps an easier way when compared to basing penalties on the TCPA—for the FCC to up the disincentive.
Which brings us to our final point.
As we mentioned earlier, Roesel was merely issued a citation, essentially a regulatory slap on the wrist, for the 21 million unwanted robocalls he placed over a three month period. A sternly worded, albeit official, letter isn’t much of a deterrent, in our opinion. So why would the FCC do this? Well, because it has to.
Under the Communications Act, the FCC typically is required to issue a citation to certain persons (generally, anyone who does not hold an FCC license of some sort) as a prerequisite to a fine – if the person cited commits the same violations again afterwards, then the FCC can fine them.
So, if Mr. Roesel continues with his robocalling campaign, the FCC could then propose additional penalties for those TCPA violations. Not exactly the best scenario considering illegal robocallers could just pack up and move on after being placed under regulatory scrutiny. Here’s where the TCIA comes into play. According to the FCC’s interpretation, the wording Congress placed into the TCIA makes it such that the FCC does not need to issue a citation for TCIA violations as a prerequisite to issuing monetary penalties.
This means, assuming spoofing is involved, the FCC can and will, based on recent trends, continue to invoke the TCIA as its way of issuing penalties against illegal robocallers right out of the gate. And, as we see here in the case of Mr. Roesel, the FCC will also issue a corresponding citation for other violations (i.e., robocalls that violate the TCPA) to ensure it can assess additional penalties in the future if the prohibited activity continues.