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Focus on Regulation

FCC Extends TCPA Liability to Technology Platform Provider

The U.S. Federal Communications Commission has adopted a Forfeiture Order (“Order”) imposing a nearly $2.9 million penalty against Dialing Services, LLC (“Dialing Services”) for making prerecorded voice calls to wireless phones without the “prior express consent” of the called parties.  This Order is notable because the FCC targeted the technology platform provider rather than the provider’s customer.

As background, the FCC investigated Dialing Services’ compliance with the TCPA in 2012 and determined that the company was responsible for more than 4.7 million calls to wireless phones over a three-month period.  In 2013, the FCC issued a citation to Dialing Services warning the company of non-compliance.  The FCC then conducted a further investigation and found the company continued to violate the TCPA, and issued a Notice of Apparent Liability (“NAL”) in 2014.

In the Order, the FCC explained that web-based platforms such as Dialing Services can “make” or “initiate” calls under the TCPA, depending on the circumstances.  The FCC rejected arguments that Dialing Services was acting as a “mere conduit,” noting that Dialing Services offered a spoofing functionality to clients and was apparently involved in the creation of the call content.

The FCC also highlighted Dialing Services’ delay in correcting its practices, stating that the company only took “serious steps” to address the TCPA violations more than 2 months after receiving an FCC citation and nearly a year after warnings from FCC staff.  The FCC imposed the maximum statutory penalty after taking into account the significant volume of calls that Dialing Services “made” before it received an FCC citation, as well as Dialing Services’ continued TCPA violations after receiving the citation.

How Can We Help?

Our TCPA Working Group brings together more than 25 attorneys in our litigation, communications, commercial, and privacy practice areas.  We provide regular TCPA counseling to clients from a broad range of industries, including technology, healthcare, communications, transportation, and financial services.  We have secured dismissals and nominal settlements for clients in TCPA actions and have worked with the FCC to clarify rules addressing a number of key TCPA issues.  We also have significant experience in TCPA appeals.