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In what is surely a troubling event for calling platform providers, the FCC last week announced a nearly $2.9 Million forfeiture against the operator of a dialing platform for making unauthorized “robocalls” to mobile telephone numbers under the Telephone Consumer Protection Act (“TCPA”). It is not yet clear if the FCC clarified its standard for liability with the decision, but what is clear is that calling platform providers must carefully review their business practices and technical operations to avoid a similar fate.
The provider in this case, Dialing Services, LLC, operated an Internet-based calling platform that allowed customers to upload or record messages that would be sent by an autodialer to a predetermined list of telephone numbers. The list of numbers could be supplied by the customer, but Dialing Services supplied lists of numbers for some political campaign customers. Dialing Services would also review the messages to ensure that they did not promote illegal activity. Furthermore, Dialing Services would suggest edits to some of the messages to more effectively serve the customer’s needs. Dialing Services offered additional value added services to their customers, including the ability to spoof telephone numbers to disguise the identity of the caller.
It is a violation of the TCPA to make calls to mobile telephone numbers using an autodialer or a prerecorded messages, unless the caller has the consent of the called parties or a specific exemption has been carved out by the FCC. None of the exemptions applied to Dialing Services’ calls. Despite arguing that it did not physically dial the numbers in question or create the content of the messages, the FCC found that Dialing Services was “so involved” in the making of the calls as to justify liability under the TCPA.
Calling platform providers may have felt that they were outside the FCC’s reach for TCPA liability as they are not common carriers and generally do not have a certificate, license or authorization issued by the Commission. This is not the case. The FCC may assess a forfeiture against a non-licensee after it has issued a citation to the company warning it of the potential violations of the Telecommunications Act or the FCC’s rules. This is exactly what happened to Dialing Services. The FCC issued a citation to the company in 2013 informing it that its operations violated the TCPA. After subsequently reviewing the company’s activity, the FCC determined that it continued to violate the TCPA and the Commission issued the fine.
Unfortunately, the Forfeiture Order that explains the FCC’s reasoning behind the decision has yet to be released. What is so concerning, however, is the potentially vague nature of the standard created by the decision. Although the FCC noted several of the ways that Dialing Services integrated themselves into the making of the calls in the past, it is not apparent that the FCC has clarified what steps that calling platforms can take to decrease the potential for TCPA liability. Hopefully, a standard will be found once the Forfeiture Order is released, but that does not seem likely. In his statement about the decision, Commission O’Reilly lamented that it will be exceedingly difficult for calling platform providers to know beforehand if they are “susceptible for being captured under this vague determination.” From this statement, calling platform providers should be prepared to evaluate all of the operations and services they offer their customers to determine if there are ways to minimize their liability.