May 6, 2015
This week, the Federal Communications Commission (“FCC”) issued citations to Call-Em-All, LLC, Ifonoclast, Inc. d/b/a Phonevite, and M.J. Ross Group, Inc. d/b/a PoliticalRobocalls.com regarding the companies’ respective use of autodialers and/or artificial or prerecorded messages in connection with calls placed to cellular telephones. The citations follow a two year investigation into the companies’ telemarketing practices.
Did these companies do enough to comply with the TCPA?
The investigations, and subsequent citations, all share similar characteristics: each of the companies complied with the FCC requests for information regarding the telephone numbers that they called over a randomly selected time period and provided sound files of the delivered robocall messages. Importantly, all of the companies seemingly maintained internal protocols to ensure that the numbers dialed were not on the federal Do-Not-Call list and were not mobile numbers. The information provided to the FCC indicated however, that a small, but not insignificant, number of the calls placed were to cell phones. The exception was Call-Em-All which, the FCC concluded, had made more than 55,000 autodialed or prerecorded calls to cell phone numbers. While the Telephone Consumer Protection Act (“TCPA”) provides exceptions to the prohibition on placing autodialed calls to cell phones, including calls placed for emergency purposes and calls made to cell phones with the prior express written consent of the recipient, the FCC determined conclusively that none of the calls made to cell phones by any of the companies fell within these exceptions.
The companies have been provided with an opportunity to respond to the citations. In the interim, each of the companies must cease and desist from placing any additional autodialed or artificial voice calls to wireless phones as a result of the FCC citations, unless the calls fall within the aforementioned exceptions. Subsequent violations will subject the companies to penalties of up to $16,000.00 per violation.
Protect Your Business From Robocall-Related Liability
We have previously written about the increased interest of the FCC concerning the use of autodialers, as well as telemarketing calls placed to cell phones in general. As these FCC citations demonstrate, even companies that have telemarketing protocols in place may be subject to FCC scrutiny. The failure of those protocols to ensure absolute adherence to the prohibition against autodialed calls placed to cell phones can expose the telemarketing firm to significant monetary liability, unless those calls fall within narrow exceptions provided under federal law. Therefore, it is imperative for businesses to have their practices and procedures examined by experienced counsel to ensure compliance with applicable state and federal telemarketing laws prior to embarking on any telemarketing campaign.
If you are interested in learning more about this topic, need to review your telemarketing practices and procedures or if you are facing an investigation from a state attorney general or other regulatory agency, please e-mail us at info@kleinmoynihan.com, or call us at (212) 246-0900.
The material contained herein is provided for information purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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