Keeping with its aggressive efforts to combat unwanted robocalls, the Federal Communications Commission (FCC) on August 24, 2021, proposed fining a duo of conservative activists and their business $5.135 million for allegedly making 1,141 unconsented, prerecorded robocalls to mobile phones in violation of the Telephone Consumer Protection Act (TCPA).

The FCC's proposed fine is the first under the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED) Act's amended TCPA enforcement rules and the largest per-call fine in the FCC's history. What's more, it shows that the FCC is stepping up its TCPA-related enforcement efforts.

According to the FCC's Notice of Apparent Liability for Forfeiture (NAL), the FCC was alerted in September 2020 that thousands of prerecorded voice message calls were apparently placed by Jacob Wohl, Jack Burkman, and their company J.M. Burkman & Associates LLC (identified by name and caller ID) regarding the 2020 presidential election. The prerecorded messages allegedly 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 department to track down old warrants and be used by credit card companies to collect outstanding debts."

The FCC's Enforcement Bureau proposed a fine of $5,135 million—which breaks down to a $4,500 penalty per call and the largest per-call penalty in the FCC's history. Importantly, this was the first TCPA penalty proposed since the TRACED Act's revised TCPA enforcement rules took effect, which freed the FCC from warning robocallers before they could be fined.

Impact Moving Forward

With the FCC having already directed significant efforts in 2020 to improve unlawful robocall mitigation and enforcement through the implementation of new call blocking and authentication obligations for voice service providers, it was no surprise that robocall regulatory enforcement would continue in 2021.

The FCC's actions through this NAL confirm this and signal that the FCC—along with state attorneys general—will be using the TCPA and the TRACED's Act's broadened enforcement tools to ensure both callers and dialing service providers are doing their part to mitigate and stop illegal robocall traffic. These actions also confirm that dialing and voice service providers should ensure they have adopted and implemented robocall mitigation policies and can comply with subpoenas and traceback requests issued by the FCC, state enforcement authorities, and/or the Industry Traceback Group to identify the source of illegal robocalls.

The providers' responses and cooperation in providing call detail records and transcripts was critical to the FCC's enforcement efforts and issuance of the NAL, which found the individuals and their company liable for 'willful or repeated' violations of the TCPA in making calls to wireless phone numbers without the call recipients' prior express consent.