From time to time, the FCC issues citations finding violations of the Telephone Consumer Protection Act (“TCPA”) to companies not normally subject to FCC jurisdiction (i.e. companies which are not common carriers.) On May 4, 2015, the FCC issued three citations finding that companies which provided political prerecorded call services to candidates and other organizations violated the TCPA by making prerecorded political calls to consumers’ cell phones absent their prior express consent. In the matters of: Call-Em-All, LLC, Ifonoclast, Inc., and M.J. Ross Group, Inc. (available at http://transition.fcc.gov/Daily_Releases/Daily_Business/2015/db0504/).
What is remarkable, however, is that these citations were issued when the companies themselves did not choose the message to be sent or the numbers which were to be called, relying on their clients to comply with the law, including the TCPA which bars prerecorded calls to cell numbers absent the prior express consent of the recipient. In fact, each company’s terms of service (“TOS”) specifically required compliance with the TCPA.
So why would the FCC cite companies for actions by those companies’ clients which violated their terms of service? If the company knew of the violations and continued providing service, I could see the FCC’s position, but not if the company had an active monitoring, record-keeping, and enforcement process of the TOS.
A citation from the FCC is not a fine, and has no monetary penalty. It does, however, allow the FCC to fine the company up to $16,000 per violation for future violations. It also is a public document, and in the era of rampant TCPA class actions, the FCC citing a company for violating the TCPA is not a good thing.
Luckily, the FCC can and will rescind citations if the recipient can show an error. Here, each of these companies should show the FCC that it required its clients to comply with the law (i.e. call cell phones only with prior express consent) in its TOS and discontinued services to any client which did not follow the TOS.
The FCC issued the citations more than two years after the companies initially responded to the FCC’s investigations, so more FCC action may be forthcoming.