Rosenworcel, O'Rielly Critical of NAL Against Racist Robocaller

Two FCC commissioners expressed doubts Thursday about a $12.9 million fine proposed against Scott Rhodes for apparently making thousands of spoofed, racist robocalls. A notice of apparent liability was approved 4-1 at the commissioners' meeting. Comments answering an FCC request for proposals to stop robocalls posted through Thursday in docket 17-59. Some comments were posted earlier (see 2001290024).

The fine isn't high enough, said Commissioner Jessica Rosenworcel, the lone dissenter. The FCC “should have sent the strongest possible signal to get robocallers to stop,” Rosenworcel said. Commissioner Mike O'Rielly expressed doubts about the item but for different reasons. “The text specifically requires evidence of subjective intent to cause harm,” O'Rielly said, calling Rhodes' actions “vile” but suggesting they don't rise to the level of harm. “Psychological harm is not exactly the type of injury contemplated by the statute.”

The Enforcement Bureau said Rhodes, using the handle The Road to Power, made thousands of robocalls. He allegedly undertook six campaigns to influence the Charlottesville, Virginia, Unite the Right trial; the 2018 California U.S. Senate primary; and the 2018 Florida gubernatorial primary, among others. The Florida calls “falsely claimed to be from the candidate and used 'a caricature of a black dialect' with jungle background noises,” said an EB release. A campaign in Georgia claimed to be a call from Oprah Winfrey and “concerned a racist and anti-Semitic conspiracy theory.” Rhodes “was apparently motivated by a belief that these actions would result in media notoriety and accordingly would enable him to increase publicity for his website and personal brand,” the FCC said.

The NAL shows signs the bureau “at least appears to apply the statute in a content- or viewpoint-based manner,” O'Rielly said. The NAL argues Rhodes intended to cause emotional harm, but that logic could lead to prohibiting “all vitriolic political speech involving spoofing,” he said. “Since that cannot possibly be the law, the draft seems to imply that Rhodes is being targeted based on the evil content of his ideas." The First Amendment prohibits the FCC from doing that, said O'Rielly. He indicated he might revisit his vote when the item moves to an order.

The FCC “may not impose a greater monetary penalty in this case than the amount proposed in the NAL,” said EB release. Chief Rosemary Harold told us in media Q&A the bureau followed standard procedures for calculating the proposed fine. “Nothing in the law stops us” from starting with a base amount and adding a more substantial adjustment, Rosenworcel told reporters. The agency has employed substantial upward adjustments on other items, she recounted. “This agency has got to answer the call and increase these fines.”

Efforts by carriers and the FCC “are having a significant impact in curtailing abusive calling practices,” commented Comcast, posted in docket 17-59 Thursday. T-Mobile and other phone-service providers echoed that, praising efforts such as secure handling of asserted information using tokens (Shaken) and secure telephone identity revisited (Stir) call authentication.

Companies and associations urged the agency to focus on the combined efforts of carriers rather than any specific measure. The final report “should take a broad view of the robocall mitigation ecosystem that reflects the multi-pronged attack industry has launched,” said CTIA. “Instead of focusing too intently on specific measures of effectiveness, the Commission should take stock of the multitude of innovative measures carriers and analytics companies are undertaking,” said T-Mobile.

NCTA and Verizon said the FCC should support a call blocking safe harbor. Incompas said such blocking “in a highly complex communications environment” carries “a high risk that lawful traffic may be inadvertently intercepted before being completed.”

“Require” rather than request specific information from carriers about implementation efforts, asked Consumer Reports, Consumer Action, Public Citizen and others. “It’s of the utmost importance that the FCC holds voice service providers accountable.” The robocall problem isn't limited to “fraudsters,” the groups said, urging the FCC not to weaken legal protections against other robocalls. The want the regulator to release additional robocall reports in the future.