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US FCC imposes US$5 million fine for robocalls, as spam fight falters in India

As a part of its investigation, the FCC issued subpoenas and spoke with robocall recipients; meanwhile, Indian-origin robocalls continue to be a headache here and elsewhere. 

The United States Federal Communications Commission proposed a US$5.13 million fine on conservative activist Jacob Wohl and his associates for 1,141 unlawful robocalls, it announced on August 25. This is the largest robocall fine ever proposed by the FCC under the Telephone Consumer Protection Act of the US.

The FCC’s Enforcement Bureau investigation found that the calls, in this case, were apparently pre-recorded and made to phones without the prior consent required under US law — the TCPA prohibits making pre-recorded voice calls to wireless phones without the consent of those receiving the calls regardless of the content of the calls. The robocalls in this case, made over August and September last year before the US presidential elections, used messages telling potential voters that if they voted by mail, their “personal information [would] 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 FCC began its investigation following consumer complaints and concerns raised by a non-profit.

Robocalls are one of the biggest forms of spam in the United States and are a growing concern in India too. Much of the Indian approach is centred on SMS spam. As the US FCC administers a multi-million dollar fine on at least one such case, the Telecom Regulatory Authority of India may do well to take heed and address the problem here too. Indian-origin robocalls have caused headaches elsewhere in the world, with an Ahmedabad-based company’s director pleading guilty in charges of defrauding Americans of US$8 million. According to Truecaller, India is among the list of ten largest countries that are recipients of scam calls.

How the case was investigated

The Enforcement Bureau of the FCC worked with the Ohio Attorney General’s Office to identify two dialling service providers that provided subpoena responses confirming the robocall campaigns and identifying the clients who had hired them for this service. The Bureau used the subpoenaed call records and recordings of the calls to determine that the calls went to wireless phones and the message was pre-recorded. The consumers who agreed to speak with the Bureau about the calls confirmed they had not provided prior consent to the callers. The subpoenas also produced email exchanges between the dialling service vendors and Wohl and Burkman about the call campaigns – including choosing which zip codes to target and “the tape we want to go out.”

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The calls themselves identified Wohl and Burkman by name and used Burkman’s wireless phone number as the caller ID. Wohl and Burkman also both admitted under oath to their involvement in the creation and distribution of the robocalls, with Burkman stating in the U.S. District Court for the Southern District of New York, “That is our call, yes, yes” with confirmation from Wohl.

  • The fine’s legal basis: The Pallone–Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED) Act of 2019 amended the TCPA so as to make inapplicable a provision of the law that previously had required the Commission to issue citations to non-FCC-regulated parties that apparently violated the TCPA. These citation requirements did not apply to the Truth in Caller ID Act, which established caller ID spoofing limits and under which the agency has issued numerous, large fines.

The proposed action, formally called a Notice of Apparent Liability for Forfeiture, or 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.

India’s fight against spam falters

India’s fight against unsolicited commercial communications has put many systems in place, but it’s unclear if that is having any impact.

The biggest recent change was in the form of the Telecom Commercial Communications Customer Preference (Amendment) Regulations, 2018, which required telcos to maintain a blockchain ledger of approved telemarketers, who would have to register before being able to send SMS messages.

This strategy backfired earlier this year when several banks stopped sending one-time passcodes to customers because they or their SMS providers were not registered with the TRAI-mandated blockchain providers. The regulations were put on hold for a while, after which the enforcement resumed.

This is not the only setback spam rules in India have faced. In 2017, TRAI fought with Apple on DND, an app that TRAI had developed in a partnership with Khosla Labs, to report SMS spam. That app requires full access to SMS messages on Android as well as iOS which Apple found to be unacceptable. After a few fiery back-and-forths, Apple created a reporting API within iMessage itself, and this put the matter to rest, with DND launching on iOS as a reporting extension to iMessage.

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I cover the digital content ecosystem and telecom for MediaNama.

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