Last week, the FCC issued a forfeiture order against Dialing Services, LLC (“Dialing Services”) $2,880,000, finding that Dialing Services made automated calls to wireless phones without prior express consent, in violation of the Telephone Consumer Protection Act (“TCPA”).  Dialing Services is a platform that offers automated calling services to its customers, and this Order is the culmination of the FCC’s investigation of the company dating back to 2012.

In 2012, FCC staff determined that Dialing Services had made more than 4.7 million calls to wireless phones in violation of the TCPA during a three-month period.  The Enforcement Bureau (“Bureau”) issued a citation in March 2013, directing the company to certify that it had stopped making calls in violation of the TCPA.  During a follow-up investigation, the staff determined that Dialing Services had continued placing calls after the citation, including 184 additional unauthorized calls to wireless phones in May 2013.  As a result, the FCC issued a Notice of Apparent Liability (“NAL”) in May 2014, proposing a $2.94 million fine.  (The ultimate forfeiture order reduced this amount to $2.88 million based on evidence that some of the calls were made with consent.)

In response to the NAL, Dialing Services asserted (among other things) that unlike its customers, it was merely a platform and therefore did not “make” or “initiate” the calls at issue under the TCPA.  The FCC applied its test for determining whether a party “initiated” or “made” a call for TCPA purposes from the 2013 Dish Network declaratory ruling:  whether the party “takes the steps necessary to physically place a telephone call” or, alternatively, is “so involved in the placing of a specific telephone call as to be directly liable for making it.” 

Applying the factors in Dish Network, the FCC determined that even if Dialing Services did not take all the necessary steps to physically place the calls—because its customers had to enter the numbers and press a button to place the calls—Dialing Services was sufficiently “involved in placing the robocalls” to be liable under Dish Network.  In making this determination, the FCC relied on findings that the company offered a spoofing functionality (i.e., technology designed to modify or hide call origination information) to its clients and was “directly involved in creation of the content of illegal robocall campaigns” because it assisted clients in the “proper structuring of a message.”

The Order notes that “[w]hile there may be instances in which a platform provider serves merely as a conduit for robocalls, that is not the case presented here.”  The Order also rejects Dialing Services’ arguments that the Bureau’s investigation was deficient, that its conduct was not “willful” under the TCPA, and that the Commission failed to properly apply the statutory factors to determine the amount of the fine.

The Order was adopted by a 2-1 vote, with Commissioner O’Rielly issuing a dissenting statement.  Commissioner O’Rielly objected on the grounds that he did “not have sufficient confidence that the allegations are correct.”  He also objected to “punish[ing] a technology and its operator rather than the actual originators of alleged illegal robocalls—the companies that used the platform to contact consumers,” and criticized the Commission’s test for platform liability under the TCPA as “arbitrary and capricious.”