Review of the FCC’s Interstate Brokers Notice of Apparent Liability $45 Million TCPA/DNC NAL

Well, for those that work both Enforcement Actions and TCPA class action defense the FCC’s Feb 23, 2022 released Interstate Brokers Notice of Apparent Liability Is to say the least – Fascinating. 

Early impressions from Press Releases alluded that the FCC took more the overall body of 514,467 alleged pre-recorded calls to levy the $45 Million fine, using a “sampling” of 10,000 calls to establish this.  Their investigative approach and calculation of the fine however was more refined under the NAL and within constructs of the Communications Act, FCC’s Rules and prior FCC TCPA actions. Commish press releases and statements also highlighted the role of the Industry Traceback Group (ITG) as the source of the investigations, by alerting the Enforcement Bureau to Interstate Brokers.  It appears from the newly released NAL multiple factors were actually a part of its discovery, including at least 27 consumer complaints to the FCC consumer complaint center.  It also appears from the NAL that the ITG was somewhat limited to early in the process and its work was used to support a generalized indica that Interstate Brokers’ originating traffic was widespread and most likely robocall in nature.  This support was used by the FCC to find Interstate Brokers’ conduct “willful and intentional” under the Communications Act.  It also seems have been used by the FCC to corroborate a third-party service provider testimony and/or records the FCC obtained that 10,000 pre-recorded were sent by Interstate Brokers. 

This is interesting because of there may be a reason why the ITG role was more supportive than direct. This is because of the years referenced in for the violative calls being in 2020.   Under the TRACED Act, the FCC was still taking applications for their single consortium for private-led efforts to trace back the origin of unlawful robocalls until May 21, 2020.  The designation as single consortium for the TRACED Act under the FCC was not awarded until July 27, 2020.  Though the ITG has undoubtedly been instrumental to both the FCC and FTC in certain cases, it still was a private industry association until that July 27th date.  The premise of the consortium role and scope per the TRACED Act is also refined to identifying and blocking the flow of robocalls within the stream of carrier and provider transmission.  Not necessarily to hunt down and gather evidence to verify that a robocall is in fact an illegal robocall.  This is to say that the statutory role of Traceback efforts still must involve at least some consumer subscriber complaint being made to as to illegality of a call, not volume of indica calls per se.  This may be why the FCC carefully referenced the Traceback Group as being the ones that “alerted” them to Interstate Brokers.  Basically, the ITG tracebacks likely supported some level of “indica” of robocalls occurring by the FCC, but that indica was itself not clear evidence until the FCC received certain admissions from Interstate Brokers’ service provider.     

The Interstate Brokers Notice of Apparent Liability does denote a fixed number of consumer complaints in its findings.   That number is 47 consumer complaints: 27 made to the FCC’s consumer complaint center (referenced in footnotes as EB-TCD-18-00030995) and another 20 trolled from the website   See, Interstate Brokers Notice of Apparent Liability ¶ 29. I don’t mean to sound facetious, but the latter is just an online public listing service that anyone can go and mark a complaint whether bona fide or not.  It lacks the complaint verification controls to separate bona fide from merely a “beef” with someone. The FCC’s consumer complaint center however has such controls.  Nonetheless, 27 consumer complaints are 27 complaints for TCPA/DNC violations. It shows that something was up with Interstate Brokers’ pre-recorded calls and prior expressed written consent of consumers.  The 20 complaints from 800notes may merely be supporting evidence as far as the Commish is concerned that reinforce the 27 received directly by the FCC.  However, these 47 complaints are not the body of evidence upon which the FCC based its $45 Million fine.

Down deeper on Page 11 ¶ 30 Footnote 72 of the NAL, we see it.  The crux of how the FCC not only determined the Forfeiture value against Interstate Brokers but also the main link of where the FCC’s body of evidence sits for its forfeiture calculations – a group of 10,000 calls.  While the FCC did state that it found Interstate Brokers’ calls had the indica of pre-recorded calls, most likely from information supplied by ITG, it relied more on Interstate Broker’s own service provider who confirmed that the calls in question were prerecorded voice message calls.  Those 10,000 calls are the crux of Interstate Brokers’ violations as far as the FCC is concerned in this NAL.  This is interesting.  Although the FCC floats around the overall number of 514,467 illegal robocalls to consumers and within these 246,218 made to consumers on the National Do Not Call Registry, the $45 Million fine and the FCC’s case in this enforcement action actually rests on only those 10,000 calls.  That’s a $4,500 per call fine, although the FCC can go as high as $11,000 per violation with each call.  So how did the Commish get its fine baseline amount of $45 Million?  

One, it appears the Commish is using 47 U.S.C. § 227(b)(4)(E) to evoke the four-year statute of limitations for violations with intent.  TCPA class action practitioners will be accustomed this that look back SOL, but if the violation is not intentional, willful and etc., the FCC is generally limited to a 1-year lookback.  No dates of consumer complaints on Interstate Brokers are specified, but the lists of complaints used in the NAL by the Commish reference consumer complaint lists under EB-TCD-18-00030995. That 18 in the middle of the case number is interesting.  There is a likelihood that the first inklings of this investigation may have come back in 2018 This is because the Commish typically uses the year when the EB investigation File Number.  It very well may be that the Commish is also looking at complaints as far back as 2018 to find the conduct of Interstate Brokers to be widespread, “willful and intentional” and ongoing conduct for § 227(b)(4)(E) purposes.  Unclear is how many of those 514,467 pre-recorded calls touted by the FCC go back in time to 2018 or before July 27, 2020.  From the NAL and Press Releases, it is clear that a thrust of why Interstate Brokers was NAL’d. It was that their pre-recorded messages referenced COVID-19 as part of a sales pitch.  It is quite possible that some of the 514,467 calls go back to 2018 but the thrust of the FCC’s effort here comes from before and during the pandemic.  The Interstate Brokers NAL is vague as to that aspect.

However, the Commish is right on one point regarding the 514,467 alleged calls and administrative actions.  It is a mammoth task and huge expense of resources to go through all those calls for bas findings in a NAL.  That type of endeavor is best reserved to any de novo trial in US District Court on the NAL should Interstate Brokers refuse to pay the final fine Ordered by the FCC or they appeal to the DC Federal Court of Appeals.   The 10,000 calls are more of a low hanging fruit as far as evidence for purpose of this administrative action.

Based on that 10,000 number, the Commish then looked to a couple factors in establishing its $4,500 per call fine. One factor was to establish an amount that would be a deterrent against future violations and other violators. But that number must work within the construct of the 10,000 calls they allege as verified. There are historically few TCPA/DNC enforcement actions on the Commish’s books, and most are small compared to Interstate Brokers 514,467 alleged calls.  So, the FCC turned to its most recent TCPA and DNC case. This was under Burkman Notice of Apparent Liability. There the Commish NAL’d a baseline fine of $5,134,500 fine for widespread intentional TCPA violations but at a lower number of calls.  That matter involved 1,141 alleged calls. The per call fine under Burkman Notice of Apparent Liability was$4,500. Here is where the FCC relied on its own precedent, and here where they set the baseline fine for Interstate Brokers.  $4,500 X 10,000 = $45,000,000.  For those calling without proper expressed written consent of the called party, that is a big clear message on where the FCC stands on those types of violative calls. The FCC is not looking at per call penalties like civil actions ($500 to $1,500 per violation), it will likely start at $4,500 and upward.

Now there are two dovetail points I see distinct from the Burkman Notice of Apparent Liability take this NAL from interesting to Fascinating.  Both have implications to civil TCPA and DNC class actions.  One is that the Commish took some time to portray Interstate Brokers as a Lead Generator.  It happens more than once in passing in the Interstate Brokers NAL. That deserves an eyeball. The Enforcement Bureau does not release NALs from the hip. Drafts of any NAL are usually run up and down the flagpole of the Commish’s management hierarchy multiple times before release.  That review usually coincides with planned deterrence actions on future cases for violations.  In that, the Enforcement Bureau typically “telegraphs” its future focused and take on that particular type of violation. They use the most immediate alleged NAL violator as a means of communicating it.    

The second involves the FCC’s recent approach to the factual findings in this NAL.  Beginning in Part B of the Interstate Brokers NAL, the Commish takes time to delve into the business model of Interstate Brokers and its operator.  See, Interstate Brokers Notice of Apparent Liability, ¶¶ 11 to 13.  Lead generation is highlighted here.  Also highlighted is Interstate Brokers’ past conduct of purchasing consumer information (leads) containing phone numbers with the intention of calling that phone number to generate interest in a particular product or service that is sold over the phone, assumedly without proper consumer consent. See, Interstate Brokers Notice of Apparent Liability, Page 4 ¶ 12 Footnote 24.  Unique in this Part is that the FCC uses declarations of Interstate Brokers’ operator made in a still pending TCPA civil class action lawsuit – specifically Cain et al v. National Health Agents, LLC (No. 1:19-cv-10487) (D. Mass. 2019). This is a pending federal class action filed by well-known TCPA plaintiff litigator Anthony I. Paronich, Esq. back in 2019.  The case appears have lingered but so too has its PACER record. It appears that record came to the attention of the FCC in this instance. The importance of this is that the FCC is now looking at pending TCPA class cases to substantiate its own factual basis for its enforcement of TCPA/DNC fines. 

This more recent FCC approach begs the further question still waiting for the courts to answer post TRACED Act – whose action will run superior when the two cross paths?  Will it be the governmental enforcement of a heavy fine to serve as statutory deterrence to the public or the private civil actions that use punitive damages as the legal deterrent on a case-by-case basis. Now that’s a poignant legal question. It underscores an inevitability created when Congress expanded the FCC’s tools and powers with passage of the TRACED Act. Prior to that expansion, the Communication Act left much of the enforcement of the TCPA and DNC to private parties, and class action lawsuits. For years such private claims filled in the gaps traditionally underserved by the FCC’s one-year SOL limits under pre-TRACED Act provisions of § 227(b). That’s now gone as far as FCC enforcement of large scale TCPA/DNC violations.  The FCC now has the means and ability to fine just as heavy as any major class action claim could do with punitive damages against violators.  The difference between the two now being who gets to reap the reward, the federal government OR private consumer plaintiffs, their class members, and their attorneys.   The revisions of the TRACED Act undoubtedly placed these two worlds in a future path to collide.  

In that, the gavel will eventually fall one way or another and for this reason, this NAL is – Fascinating.

If you wish to review the NAL for yourself and your own preventive medicine, the link to the Interstate Brokers FCC NAL is below.  If you have any questions about the NAL or this analysis, contact me at my law office. The information and analysis provided above is my own and intended to generally educate, and more importantly to make those in the industry think about the topics covered be they either in the legal field or in marketing field.  It is by no means exhaustive or any position on the merits.

Here is the link to the FCC page with NAL, Press Release and Commissioner statements:  FCC Proposes $45 Million Fine for Apparently Unlawful Robocalls | Federal Communications Commission

Leave a Reply

Your email address will not be published.