The Federal Communications Commission (FCC) has released a Notice of Apparent Liability for Forfeiture (NAL) against Travel Club Marketing, Inc. (Travel Club) in the amount of $2.96 Million for apparent violations of the Telephone Consumer Protection Act (TCPA) and related FCC rules regarding the delivery of prerecorded messages, as well as its Caller ID rules. This enforcement action serves as a reminder to companies placing autodialed calls or delivering prerecorded messages to ensure that such calls and messages comply with the TCPA and the FCC’s rules.
In the NAL, the FCC found that Travel Club had apparently violated the TCPA and the FCC’s TCPA rules by delivering 144 unsolicited, prerecorded messages to 113 cellular telephone numbers. Under the TCPA and the FCC’s implementing rules, the delivery of prerecorded messages to wireless telephone numbers is prohibited (absent an emergency) unless the caller has obtained “prior express consent” from the called party. The FCC also found that Travel Club apparently violated the TCPA and related FCC rules by delivering 41 unsolicited, prerecorded advertising messages to the residential telephone lines (e.g., landlines) of 29 consumers. The calls did not qualify for any of the exemptions to the TCPA restriction against the delivery of prerecorded calls to residential telephone lines.
In addition, the FCC found in the NAL that Travel Club apparently violated section 64.1601(e) of the FCC’s rules, which requires that telemarketers transmit certain Caller ID information, including information that enables consumers to make do-not-call requests during regular business hours.
The FCC imposed the maximum penalty of $16,000 per call for each of Travel Club’s 185 apparent violations, for a total proposed forfeiture of $2,960,000. Although the FCC has previously considered $4,500 per message to be an appropriate base amount for delivering an unsolicited, prerecorded message, it noted that it was imposing the maximum penalty because of the number of Travel Club’s “apparent willful, repeated violations” and its “apparent deceptive and evasive conduct.”
Again, companies should ensure that their calling practices comply with the TCPA and the FCC’s rules, as well as FTC and state requirements. Otherwise, they risk not only class action litigation, but also potential regulatory enforcement fines that are imposed on a per-call basis.