The FCC issued a forfeiture order this week against a company accused of violating the TCPA. According to the order released on July 26, 2017, Dialing Services, LLC, a robocalling platform, was responsible for more than 4.7 million calls to wireless phones over a three-month period in 2012 in violation of the Telephone Consumer Protection Act (TCPA). The FCC’s Enforcement Bureau put Dialing Services on notice of its violations by issuing a warning to the company back in 2013. When the FCC inspected Dialing Services again, it found repeat violations. “There is no question that the actions giving rise to the liability in this case were repeated; Dialing Services made 180 separate, unlawful robocalls to wireless telephones in violation of the TCPA.” For those 180 additional calls, the FCC fined the company $2,880,000. (Yes, that’s $16,000 per call.) The FCC’s authority to issue fines is capped at $16,000 per violation, rather than the $500-$1,500 per call under the TCPA’s statutory damages.)
According to the FCC:
Though the calls were made for the benefit of Dialing Services’ customers, Dialing Services was liable for the TCPA violations because “the record also shows that Dialing Services was directly involved in creation of the content of illegal robocall campaigns” because it advertised that its platform could assist clients in the “proper structuring of a message.” The FCC found that by actively assisting clients with the creation and structure of messages, Dialing Services was a “direct participant in determining the content of the calls at issue.”
The Order reflects the FCC’s displeasure with Dialing Services for assisting clients in blocking or altering caller ID information to make it harder for recipients to know who initiated the calls. “In contrast to other functionalities Dialing Services may offer, Caller ID spoofing and blocking functionalities are designed to deceive consumers about the originating point of calls or to hide the originating point altogether. . . .”
Important for calling and texting platform providers, the FCC rejected an argument from Dialing Services that it was not required to ensure that the necessary level of consent was obtained from the consumers receiving the calls. The Commission notes that Dialing Services was “so involved” in the calls, it either “had the responsibility to obtain consent from the called parties” or should have required the platform’s customers to “provide proof of [the] respective consents” from the consumers receiving the calls. The Commission expressly rejected “the implicit assertion that only one party can be liable under the TCPA for illegal calls.”
Finally, the FCC rejected Dialing Services’ argument that consumers may have provided prior express consent “orally or in ways not easily documented.” In rejecting this argument, the FCC noted that its Citation and Notice of Apparent Liability both reminded Dialing Services that “[c]allers contending that they have the prior express consent to make prerecorded voice or autodialed calls to cell phones or other mobile service numbers have the burden of proof to show that they obtained such consent.” The Order finds that Dialing Services “proceeded at its own risk” by not having documented consent.
Surprisingly, the Order was adopted on a 2-1 vote with Democratic Commissioner Clyburn joining Republican Chairman Pai to issue the Order.
The other Republican Commissioner, Michael O’Rielly, dissented. Calling the Order’s analysis “lacking,” O’Rielly took issue with the fact that the Enforcement Bureau only went after the platform provider and didn’t include the companies who used the platform to make the calls. O’Rielly pointed out that, while Dialing Services was sending 1.5 million unlawful robocalls monthly, after it was warned of its violations, the Enforcement Bureau found only 184 additional violations. “While not perfect, from 1.5 million to 184, that equates to a 99.99 percent decrease in a short amount of time,” he observed. He also pointed out that “Dialing Services did further work to scrub its calling lists to show compliance and there have been zero incidents since mid-2013.” As such, Commissioner O’Rielly found the fine excessive and argued that platform providers should not be the target of enforcement actions for TCPA violations absent “demonstrable evidence of clear intent to violate [the] TCPA. . . .”
The FCC’s order yields 3 key takeaways for call and text messaging platform providers:
- Be cautious about helping, or representing that you help, your customers craft the specific messages delivered from your platform as it may be used as evidence that you were “so involved” in the call you are deemed to have initiated them and, therefore, liable.
- Obtaining prior express consent is pointless if you do not have a clear way to document that the consent was given. Obtaining prior express written consent may be a safer course of action, even when not absolutely required, because it allows you to produce an evidentiary record for the FCC or in court if necessary.
- 99% may not be “good enough” when it comes to the FCC’s Enforcement Bureau and the TCPA. If your company receives word from a consumer or any state or federal agency that your customers are transmitting unauthorized calls or text messages, you should take these concerns seriously and act immediately. We recommend a) having a written investigation policy that outlines the steps you will take when a complaint is made, and b) ensuring that your customer contracts allow you plenty of latitude to respond to any such allegation.
In short, don’t let a few hundred unlawful calls turn into a few million dollars of exposure.