On May 7, 2014, the Federal Communications Commission (“FCC”) issued a notice of apparent liability ruling which held that a robocalling service provider may be held liable for violations of the Telephone Consumer Protection Act (“TCPA”) related to prior written consent, even if the robocalling service was merely providing transmission facilities that enabled its third party clients to contact consumer telephone numbers of its clients’ choosing.  The FCC ruled that, consistent with recently decided cases (discussed here), the liability of the underlying sellers and the telemarketing service providers are not mutually exclusive.

Background on Robocalling

Robocalls are telephone calls that use both a computerized auto dialer and a computer-delivered prerecorded message.  Robocalls tend to receive a heightened level of scrutiny under various state and federal telemarketing laws due to the fact that there is no live interaction with the caller and a higher volume of calls is made possible through use of the technology involved.  By way of example, robocalls violate key provisions of the TCPA when made to mobile telephone numbers without the applicable consumer’s “prior express written consent” to receive such calls to her/his mobile device.

Service Provider Liability

As part of its increased focus on robocalling, the FCC brought an action against Dialing Services, LLC (“Dialing Services”) for violating the TCPA, as well as the terms of an earlier FCC citation for similar infractions.  Dialing Services provides robocalling transmission services to its clients, which services involve delivering prerecorded messages to consumer telephone numbers of its clients’ choosing. 

The FCC ruled that Dialing Services assisted its clients in broadcasting prerecorded calls to consumers without their prior written consent in violation of the TCPA, including “184 unauthorized autodialled or prerecorded message calls to cell phones”- all of which came after an earlier citation from the FCC warning Dialing Services about past and future violations of the TCPA.   Pursuant to the FCC ruling, the FCC found that Dialing Services is liable for the statutory maximum of $16,000 for each of the 184 violations of the TCPA, for a total of $2,944,000.

How to Protect Your Business

As the Dialing Services case makes clear, entities that fail to comply with state and federal telemarketing requirements may find themselves facing regulatory action, as well as consumer class action litigation.  This is true even where the entity in question is a service provider, and not the entity marketing a product or providing the applicable telephone numbers to be contacted