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For anyone who thought the Federal Communications Commission’s (“FCC” or “Commission”) new Chairman would put an end to eye-popping proposed forfeitures, think again. That’s especially true for forfeitures related to the Telephone Consumer Protection Act (TCPA) because, as our firm has noted, the TCPA enjoys broad, bipartisan support and robocallers may be one of the few groups of people less popular than Congress.
Last week, the FCC issued a Notice of Apparent Liability (“NAL”) to Adrian Abramovich and two of his companies involved in making robocalls. The NAL alleges that Abramovich and his companies made more than 96 million fraudulent robocalls using spoofed caller IDs. According to the NAL, the robocalls promoted “‘exclusive’ vacation deal[s] offered by a well-known travel or hospitality company such as TripAdvisor, Expedia, Marriott, or Hilton.” However, when a consumer pressed 1 to hear more about the offer, the consumer was redirected to an international calling center “where live operators attempt to sell the consumer one or more vacation packages (usually involving timeshare presentations), but are not affiliated with the well-known and trusted brands presented to the consumer during the prerecorded message.”
At first blush, the NAL appears a just desert for a scam artist, but the NAL carries a surprise for businesses that provide or rely on robocalling services, many of which are not generally subject to FCC jurisdiction. For people or businesses that are not licensed or regulated by the FCC, the Commission typically has to issue a citation, notifying the person or business of a violation of the FCC’s rules, prior to issuing an NAL proposing a forfeiture. Then, if the person or business continues to violate the rule, the FCC can issue an NAL and initiate the forfeiture process.
However, in the Abramovich NAL, the Commission initiated the forfeiture process without issuing a citation. The Commission claims it can do this because Section 227(e) of the Telecommunications Act, which governs calls made with “misleading or inaccurate caller identification information with the intent to defraud, cause harm, or wrongfully obtain anything of value,” only requires the FCC to use the NAL notice and forfeiture procedures. In other words, according to the Commission, a person or entity that spoofs caller ID information with the intent to defraud, cause harm, or wrongfully obtain anything of value does not receive the additional protection of the FCC’s citation requirements because the citation process is not mentioned in Section 227(e).
The Abramovich NAL highlights two important considerations for any company involved in robocalling. First, a business should carefully consider whether using a spoofed caller ID advances the purpose of its calls. Many businesses spoof caller IDs for legitimate reasons, such as to provide customers with a single callback number. However, spoofing caller ID could limit a company’s options in defending alleged TCPA violations if the FCC determines the company’s calls were made with the intent to defraud, cause harm, or wrongfully obtain anything of value.
Second, for calling platform providers, the Abramovich NAL raises the possibility that the Commission could impose similar harsh forfeitures on a platform provider based on fraudulent calls made by a platform user. The Dialing Services NAL illustrates how the Commission can impute TCPA violations to a dialing platform provider. It remains to be seen whether the Commission would similarly assign fraudulent intent to a platform provider, but for a platform provider that offers caller ID spoofing, reevaluating how to deal with users that take advantage of caller ID spoofing options may make sense in the wake of the Abramovich NAL.
If your company has any questions about restrictions on caller ID spoofing or how TCPA’s impact on your business, please contact Seth L. Williams as firstname.lastname@example.org, Jane L. Wagner at email@example.com, or Nathaniel J. Hardy at firstname.lastname@example.org.