An FCC First!  A Massive Robocall Fine Without Prior Warning

By: Andrew Regitsky

On August 24, 2021, in a Notice of Apparent Liability for Forfeiture (NAL), the FCC proposed a $5.1 million fine against John M. Burkman, Jacob Alexander Wohl, and J.M. Burkman & Associates LLC (Associates) for making 1,141 unlawful robocalls to wireless phones without prior express consent, in violation of the Telephone Consumer Protection Act (TCPA).  While this is the largest TCPA robocall fine ever proposed by the Commission, it has even more significance.  Thanks to a recent Congressional amendment to the TCPA, it is the first enforcement action where the FCC was not required to warn robocallers before their illegal calls could be counted toward a proposed fine.  Specifically, the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED) Act of 2019 amended the TCPA to make applicable a provision of the law that previously had required the Commission to first issue citations before issuing fines to non-FCC-regulated parties that violate the TCPA. 

The Commission issued its NAL because the Associates violated section 227(b) of the Telecommunications Act. because the TCPA and its own rules prohibit prerecorded voice calls to wireless telephone numbers without subscribers’ prior express consent—unless made for an emergency purpose.  This prohibition applies regardless of the content of prerecorded messages placed to wireless numbers. 

In the current case, the Associates are political consultants that use the name “Project-1599” for their political activities.  The FCC provided the factual background leading to the massive fine.

On September 15, 2020, the Commission was alerted that thousands of prerecorded voice message calls were apparently placed by Burkman and Wohl.  In addition, the Commission received multiple complaints about the calls.  Enforcement Bureau (Bureau) staff traced several complaints to a list of calls from Burkman, Wohl, and Burkman & Associates on August 26, and September 14, 2020.  Bureau staff then contacted those consumers.  The recorded messages 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.”  The Bureau, in cooperation with the Ohio State Attorney General’s Office, identified two dialing service providers that had placed the suspected illegal robocalls.  Subpoena responses from the dialing service providers (a) confirmed the existence of the robocalling campaign and (b) identified Burkman and Wohl as the customers who hired the providers to place the calls.  The subpoena responses also provided call detail records for every call that the providers placed on behalf of Burkman and Wohl.  Bureau staff listened to samples of the calls to determine that they were prerecorded (Notice, at p. 2).

The Bureau contacted the consumers that received the calls and found that none had consented to them.  Therefore, as noted above, the Associates apparently violated section 227(b) of the Act and section 64.1200(a) of the Commission’s rules by placing 1,141 prerecorded calls to wireless phones without prior consent or an emergency purpose.

The Commission decided to propose a forfeiture of $4,500 for each unlawful robocall.  Since there were 1,141 calls, the proposed fine totals $5.1 million.  The $4,500 for each illegal call is the standard the Commission has used in previous cases like this one, although they involved fewer calls.

It is important to note that the Commission’s actions here are not the final word on this case.  

[The NAL] contains only allegations that advise a party on how it has apparently violated the law and may set forth a proposed monetary penalty. The Commission may not impose a greater monetary penalty in this case than the amount proposed in the NAL.  Neither the allegations nor the proposed sanctions in the NAL are final Commission actions. The parties will be given an opportunity to respond, and the Commission will consider the party’s submission of evidence and legal arguments before acting further to resolve the matter.  (FCC August 24, 2021, News Release.).

Now that the Commission can issue massive penalties without warning, all parties considering making illegal robocalls are on notice, it could cost them a fortune.