Each year with the end of summer comes an announcement from the FCC as to how it is divvying up its operating costs to then charge its regulatees in the form of regulatory fees. This annual ritual, required by Congress, makes the FCC virtually unique among federal agencies in funding its operations by passing the hat among those it regulates (and then charging them a fee to process each application to boot).
Bringing to a close the process initiated with the adoption of the Secure and Trusted Communications Act of 2019, the FCC’s Public Safety and Homeland Security Bureau released its list of communications equipment and services that it has deemed to pose an unacceptable risk to U.S. national security. U.S.-based service providers are prohibited from receiving federal subsidies for purchasing the listed communications equipment or services (Covered List), and service providers will be given an opportunity to receive federal funds to subsidize the removal and replacement of the communications equipment and services included on the Covered List.
Pillsbury’s communications lawyers have published FCC Enforcement Monitor monthly since 1999 to inform our clients of notable FCC enforcement actions against FCC license holders and others. This month’s issue includes:
- Idaho Man Behind Racist Robocall Campaigns Fined $9.9 Million for Thousands of Illegally Spoofed Robocalls
- FCC Affirms $233,000 Fine Against Large Radio Group for Sponsorship ID Violations
- FCC Proposes a Combined $47 Million in Fines Against EBS Licensees for Failure to Meet Now-Defunct Educational Requirements
Scammer Hit With $9.9 Million Fine for Thousands of Illegally Spoofed Calls
The FCC recently issued a $9.9 million fine against an Idaho man behind a controversial media company linked to various racist and anti-Semitic robocall campaigns across the country. The man caused thousands of robocalls to display misleading or inaccurate caller ID information—a practice known as “spoofing.”
The Truth in Caller ID Act, codified at Section 227(e) of the Communications Act and Section 64.1604 of the FCC’s Rules, prohibits the use of a caller ID service to transmit or display misleading caller ID information with the intent to knowingly cause harm or wrongfully obtain something of value.
During the summer and fall of 2018, individuals across the country received thousands of robocalls targeting several contested political campaigns and controversial local news events. In August 2018, for example, Iowa residents received 837 prerecorded messages referring to the arrest of an undocumented immigrant from Mexico charged with the murder of a University of Iowa student. More than 1,000 residents in Georgia and Florida received calls making racist attacks against the gubernatorial candidates running in those states. In response to complaints received about the robocalls, the FCC traced 6,455 spoofed calls to the Idaho man and his media company after identifying the dialing platform he used to make the calls. By matching the platform’s call records with news coverage of the calling campaigns, the Enforcement Bureau identified six specific robocall campaigns in California, Florida, Georgia, Iowa, Idaho and Virginia. Using the platform, the man selected phone numbers that matched the locality of the call recipients to falsely suggest that the calls were local.
In January 2020, the FCC issued a Notice of Apparent Liability (NAL), proposing a $12.9 million fine against the man for violating the Communications Act and the FCC’s Rules by spoofing caller ID information with the intent to cause harm or wrongfully obtain something of value. In response, the man called for cancellation of the NAL, claiming that: (1) the FCC failed to establish the identity of the caller and prove that the caller was the same person that caused the display of inaccurate caller ID information; (2) some of the caller IDs used were either assigned to him or were non-working numbers and therefore there was no intent to cause harm; (3) the spoofing of unassigned numbers and content of the messages themselves were forms of political speech protected by the First Amendment; (4) the FCC could not verify that each of the 6,455 calls contained the pre-recorded messages at issue; (5) the NAL failed to establish any intent to cause harm to the call recipients; (6) the “wrongfully obtain something of value” factor should only apply to criminal wrongdoing or telemarketing; and (7) the FCC failed to issue a citation before adopting the NAL in accordance with its rules.
The FCC considered and rejected most of these arguments. In reviewing the dialing platform’s records, the Commission verified that the calls originated from his account and that there was no evidence to support his claim that someone else had selected the call numbers. Further, although he denied involvement in selecting the caller ID numbers, the man noted that several of the numbers contained patterns that signify neo-Nazi ideology, which the FCC used to support its finding that the Idaho man knowingly chose the numbers at issue. And despite what the man referred to as the “well established” and “recognized” meanings behind the numbers, the FCC concluded that the use of such numbers did not constitute protected speech because it was not clear the meaning was understood by the call recipients as required by the First Amendment.
The FCC also addressed how it verified the spoofed calls, noting that it relied on the same methodology used in prior spoofing enforcement actions where a sample of all calls made were reviewed, identical statements were confirmed in the recordings, and wrongful intent was identified. Regarding the argument that enforcement should only apply to criminal conduct or telemarketing, the FCC concluded that the use of local numbers to deceive call recipients demonstrated the man’s intent to cause harm and wrongfully obtain something of value in the form of avoiding liability and promoting his personal brand.
Finally, the FCC noted that neither the Truth in Caller ID Act nor the Commission’s rules require issuance of a citation prior to an NAL.
The Idaho man did, however, successfully demonstrate that one of the caller ID numbers displayed was not spoofed. The FCC found that a May 2018 robocall campaign targeting California residents displayed a contact number that was assigned to the man and was therefore not spoofed. As a result, the FCC affirmed its original fine but reduced it by $2.9 million to account for the calls that were not spoofed. The $9.9 million fine must now be paid within 30 calendar days after release of the Order.
FCC Affirms $233,000 Fine Against Large Radio Group for Sponsorship ID Violations
The FCC issued a $233,000 fine against a national radio group for violating the Commission’s Sponsorship Identification rule and the terms of a 2016 Consent Decree by failing to timely notify the FCC of the violations.
Under the Communications Act and the FCC’s rules, broadcast stations must identify on-air any sponsored content, as well as the name of the sponsoring entity, whenever “money, service, or other valuable consideration” is paid or promised to the station for the broadcast. According to the FCC, identifying sponsors ensures that listeners know who is trying to persuade them, and prevents misleading information from being conveyed without attribution of the source. Continue reading →
The Continuing Appropriations Act, 2021 and Other Extensions Act, a $2.3 trillion COVID-19 relief and omnibus government funding package, contains several noteworthy communications-related measures, including $7 billion in funding for broadband initiatives and expanded television and radio station eligibility for the Paycheck Protection Program administered by the Small Business Administration (SBA).
$7 Billion in Broadband Funding
The legislation’s broadband provisions target funding to both new and existing programs, responding to immediate broadband access and affordability challenges intensified by the pandemic, while also addressing longer-term broadband deployment and network security issues. Specifically, the legislation will provide additional funding for telehealth, create an emergency broadband subsidy program for eligible low-income households, fund increased broadband deployment on Tribal lands and in unserved areas, and support the removal and replacement of communications network equipment and services that pose risks to national security. An overview of these provisions is included below.
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