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FCC Levies Record $2.96 Million Fine Against Florida Company for Autodialed Calls

On August 11, the Federal Communications Commission handed down a $2.96 million fine against Travel Club Marketing Inc., related entities, and owner Olen Miller (collectively “Travel Club”), the largest fine in FCC history related to autodialed calls.  The fine stems from allegations that the companies violated the Telephone Consumer Protection Act in their telemarketing efforts, including sales of vacations and timeshares.  Travel Club was accused of making at least 185 “prerecorded advertising calls” to more than 142 cellular and residential telephone numbers, many of which were listed on the National Do Not Call Registry.

The fine culminates a formal regulatory process that began on October 31, 2011, when the FCC issued a Notice of Apparent Liability (NAL) to Travel Club proposing the $2.96 million forfeiture for “willful and repeated violation” of the TCPA.  When Travel Club finally responded, the FCC noted the failure “to provide any information or make any arguments whatsoever to challenge the NAL’s findings” and that Travel Club “continued to make unlawful robocalls during the time that the NAL underlying this Forfeiture Order has been pending, the fact of which militates against a cancellation or reduction of the proposed forfeiture penalty.”

Under FCC rules applicable when the calls were made, such telemarketing calls were allowed only with “either prior express consent or an established business relationship” with call recipients, which Travel Club did not possess.  The FCC has since further tightened these restrictions, ending the “established business relationship” exemption in 2012.  The previous record fine was $2.9 million, ordered by the FCC in May 2014, in relation to autodialed calls made during the 2012 United States presidential campaign.

Although the fine represents a new high for an administrative enforcement action by the FCC, an ongoing enforcement action by the FTC and several states against Dish Network under the TCPA, the FTC’s Telemarketing Sales Rule, and parallel state laws is seeking, theoretically at least, billions of dollars in penalties arising out of allegedly illegal telemarketing calls.  Our take on the Dish Network action can be found here. 

Troutman Sanders LLP has unique industry-leading expertise with the TCPA, with experience gained trying TCPA cases to verdict and advising Fortune 50 companies regarding compliance strategy.  We will continue to monitor regulatory and judicial interpretation of the TCPA in order to identify and advise on potential risks.

CFPB Requesting More Information Regarding Its Debt Collection Rulemaking

The Consumer Financial Protection Bureau sent a questionnaire with almost 60 questions to randomly selected debt collectors and service providers as part of its potential rulemaking regarding debt collection, a process that began almost two years ago.   

The CFPB received 23,000 comments in response to its Advance Notice of Proposed Rulemaking (ANPR) for debt collectors, which included 162 questions.  According to the CFPB, this new “survey is being conducted in order to build the [CFPB’s] knowledge of the operational costs of collecting debt that is in default” and the answers provided to the questions are intended to “help the CFPB better understand the burden of potential regulations affecting the debt collection industry.” 

This questionnaire was sent with a cover letter from John McNamara, the Debt Collections Program Manager in the CFPB’s Division of Research Markets & Regulations.  In it, the CFPB explains it “will be gathering information from a variety of debt collection firms, creditors, and service providers” that will “inform the Bureaus’ analysis of the benefits and costs of potential new rules relative to debt collection.”   

The questionnaire asks about basic activities and operational costs of collecting debt, including, for example, questions about vendors used for activities such as dialers or print mailings, maintaining data about consumer accounts, and furnishing information to credit bureaus.  The CFPB also stated that it plans to conduct “follow-up phone interviews” with some of the companies that respond to the survey “to help us understand their operations in more detail.”