The FCC this week announced that partisan disinformation merchants Jacob Wohl and Jack Burkman could face a record $5 million fine for illegal robocalls placed during the run up to the 2020 elections. While the proposed fine sets an agency record, the FCC historically has a dodgy track record of following up such threats with meaningful punishment.
According to the FCC announcement, Burkman and Wohl potentially face $5,134,500 in penalties for violating the Telephone Consumer Protection Act by placing 1,141 illegal robocalls to voters ahead of the 2020 election without consumer consent.
The calls, placed between August 26 and September 14, 2020, involved recorded messages falsely telling potential voters that, if they vote by mail, their “personal information will 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 calls cited by the FCC are allegedly part of a much broader campaign to influence voters across several states. The duo already face four felony charges in Michigan for allegedly intimidating voters, conspiring to violate election law, and using a computer to commit a crime.
While the pair targeted nearly 12,000 residents in the Detroit area with the misleading calls, state attorneys general in New York, Pennsylvania, Ohio and Illinois say the broader campaign involved 85,000 calls made nationwide.
The Michigan charging documents allege that Wohl and Burkman created a phony civil rights organization named Project 1599 that exploited “racially-charged stereotypes” in a bid to intimidate minority voters in key election states and prevent them from voting by mail.
According to the FCC, the campaign wasn’t technically sophisticated. Unlike many robocalls, which utilize an ever-rotating crop of spoofed phone numbers to prevent caller identification, the calls were made using Burkman’s wireless phone number. The calls also clearly identified Burkman and Wohl as the orchestrators of the effort.
The 1,141 calls singled out by the FCC violated the law because the Telephone Consumer Protection Act prohibits making prerecorded voice calls to wireless phones without the consent of those receiving the calls—regardless of the content. But the FCC notification of liability is just the proposal for a fine—not an actual penalty.
Actual punishment will require a consensus vote by the agency’s four existing commissioners. But because the Biden administration still hasn’t appointed a fifth Commissioner and permanent agency boss, any vote could find itself gridlocked by the two current Trump-allied GOP Commissioners, Brendan Carr and Nathan Simington.
“Across the board, the FCC is stepping up its efforts to combat illegal robocalls,” interim FCC boss Jessica Rosenworcel said of the agency announcement.
While this latest fine is the largest robocall fine for violating the TCPA, the FCC has levied significantly larger fines against robocallers that utilize number spoofing technology—such as the $225 million fine imposed on a Texas telemarketer last year.
But the agency has frequently been criticized for a lack of meaningful follow up.
A 2019 Wall Street Journal investigation found that of the $208 million in robocall fines imposed by the FCC since 2015, the agency collected just $6,790. Similarly, of the $1.5 billion in robocall fines imposed by the FTC since 2004, the agency collected just $121 million.
That’s often because spoofing robocallers are hard to find, or have already gone bankrupt by the time any litigation ends and collectors finally arrive. But it’s also because telemarketers are often able to negotiate a lower penalty, or in the case of some telecom giants like AT&T, are consistently able to wiggle their way out of paying FCC fines entirely.
The government has also been repeatedly criticized for focusing exclusively on scam robocalls, despite the fact that many legitimate industries—like debt collectors—utilize many of the same robocalling tactics in a bid to extract money from consumers they already know can’t pay.
In 2018 Congressional testimony, Margot Freeman Saunders of the National Consumer Law Center noted that the top robocalls routinely aren’t scammers—they’re historically banks, debt collectors, telecom companies, and retailers. All of which have consistently lobbied to weaken federal rules to ensure that outright scammers receive the lion’s share of government attention.
“The biggest robocallers are not scammers,” she warned. ‘Scammers actually account for only a small fraction of the robocalls to consumers in the United States.”
Despite the FCC’s near annual pledge to better combat the robocall menace—including recent rule changes letting wireless carriers provide blocking tools by default—the problem shows no sign of slowing down. According to the YouMail Robocall Index, some 30.7 billion robocalls have been placed so far this year in the U.S. alone, significantly up from 2020 levels.