FCC PROPOSES $5.1 MILLION ROBOCALLING FINE AGAINST JACOB WOHL and JOHN BURKMAN
The footnotes in the FCC’s NAL are life…
Without going into the ins and outs of the now infamous Jacob Wohl & Jack Burkman unlawful and racially biased robocalls, which occurred in the late summer and early fall of 2020. The run up to the 2020 General Election. The unlawful robocalls were targeted to African Americans and Latino Americans.
The Legal Framework
Pursuant to the Telephone Consumer Protection Act 47 U.S.C. § 227 -which makes it impermissible to send prerecorded calls to wireless phone numbers, irrespective of the “content” of the robocall. The relevant restriction can be found below…which reads in part:
(b) Restrictions on use of automated telephone equipment
(1) Prohibitions
It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States—
(A) to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice
Secondary Legal Framework TRACED Act
Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (TRACED Act) Public Law 116-105 - which allows the FCC to utilize a Notice of Apparent Liability for Forfeiture for violations of Section 227(b) of the Act without first issuing a citation.
…largest TCPA robocall fine ever proposed 1…
…proposed a $5,134,500 fine against John M. Burkman, Jacob Alexander Wohl, and J.M. Burkman & Associates LLC for apparently making 1,141 unlawful robocalls to wireless phones without prior express consent in violation of the Telephone Consumer Protection Act. This is the largest TCPA robocall fine ever proposed by the Commission.
FCC worked with Ohio’s Attorney General
The FCC and Ohio AG issued various subpoenas to further their investigation. The subpoenas uncovered the following set of facts:
identified two dialing service providers
confirming the robocall campaigns and
identifying the clients who had hired them for this service
the records and recordings of the calls to determine;
calls went to wireless phones
the message was prerecorded
Recipients never provided prior consent
email exchanges between the dialing service vendors and Wohl and Burkman about the call campaign
targeted calls to specific zip codes (demographics)
…robocalls in this case, made on August 26 and September 14, 2020, used messages telling potential voters that, if they vote by mail, their “personal information will be part of a public database that will be used by police departments to track down old warrants and be used by credit card companies to collect outstanding debts.”
“That is our call, yes, yes”
To read the full FCC Press Release, found here
FCC’s Notice of Apparent Liability for Forfeiture
Unclear why most are unaware of the FCC’s Notice of Apparent Liability for Forfeiture (NAL) —Notwithstanding those of us in DC, who actually know where and what is important, we tend to gravitate towards facts and documents to support said facts versus relying on innuendo. The NAL concerning the FCC’s proposed $5.1M fine of Burkman, Wohl, and Burkman & Associates unlawful robocalls contains a plethora of detailed information.
For Example: the footnotes in the NAL are highly informative and offer an endless buffet of actual facts…
Ohio State Attorney General’s Office, identified two dialing service providers that had placed the suspected illegal robocalls. Subpoena responses from the dialing service providers;
(a) confirmed the existence of the robocalling campaign and
(b) identified Burkman and Wohl as the customers who hired the providers to place the calls.
The subpoena responses also provided call detail records for every call that the providers placed on behalf of Burkman and Wohl… Bureau staff listened to samples of the calls to determine that they were prerecorded. Those subpoena responses further produced records of email exchanges between Burkman and Wohl and the dialing service providers.
The emails discussed the voice messages, which zip codes to call, pricing, and other matters related to the robocalling campaign…
The evidence supports finding…
The FCC drilled down to four areas of facts and supporting evidence;
…First, the voice messages identified Burkman and Wohl by name,and Burkman’s personal wireless phone number was listed as the calling party on the recipients’ caller ID.The Bureau subpoenaed phone records for this number and confirmed that Burkman is assigned this wireless phone number.
Second, Burkman and Wohl have admitted, under oath, their involvement in the creation and distribution of the robocalls.
Third, both dialing platforms provided service agreements signed by Burkman that listed his residential address and personal cell phone number.
Fourth, email exchanges between or among Wohl, Burkman and a sales agent for one of the dialing platforms discuss customizing the robocall campaign and pricing.
The subpoenas (both by the FCC and Ohio Attorney General’s office) produced numerous records, which included communications to/from Project 1599 to the two robocall companies. For example:
In one email, Burkman directed the dialing platform to use his personal cellphone as the number listed on the recordings as a call back number. Burkman also provided the dialing platform with a list of eight zip codes that he directed the dialing platform to target with the robocalls.
Ultimately, Burkman agreed on a price and paid one of the dialing platform using a MasterCard issued in his name. Burkman & Associates paid the second dialing platform with a company-issued check.
The Calculation of the proposed $5.1M fine
On page 5 of the FCC’s NAL concerning this matter —the FCC provided an aggregate explanation of how they calculated the proposed $5.1M fine. The baseline fine is $4,500. Between the codified language of the aforementioned legal framework, the FCC confirmed that Wohl/Burkman & Burkman Associates placed a total of 1,141 apparently unlawful prerecorded voice message calls to wireless numbers. So the math is relatively simple;
$4,500 x 1,141 calls = $5,134,500.00
as noted by the FCC -
Section 503(b) of the Act authorizes the Commission to impose a forfeiture against any entity that “willfully or repeatedly fail[s] to comply with any of the provisions of [the Act] or of any rule, regulation, or order issued by the Commission.”
Section 503(b)(2)(D) authorizes the Commission to assess a forfeiture of up to $20,731 for each violation…
Also see footnote 39 which states previous FCC fines levied with a baseline fine of $4,500 per call.
…upwardly adjusted to reflect the egregious circumstances…
on page 6 of the FCC’s NAL they do an excellent job in articulating their rationale as it relates to this specific case. Generally speaking the FCC Enforcement Bureau views matters on an ICB (individual case basis) —so page 6 is not at all surprising. And the recitation of what the actual statute allows for maximum allowable fines - this is essentially the FCC saying: the law allows us to levy fines up to $20,731 but our Commission has previously enacted base level fine of $4,500 per call.
now that is very interesting -“piercing the corporate veil”
Well played FCC, well played indeed…the FCC also moves to hold the three entities both individually and collectively liable for their robocalls. And then the FCC drops the magic words of;
The evidence shows that all three were jointly and severally involved in making the robocalls at issue…
The evidence also showed that Jack Burkman (individually) paid via his personal credit card for some of the robocalls, he also attested in Court (SDNY) that he was personally involved in both the content of the robocalls but also instructed the companies to target eight specific zip codes. Therefore Burkman is individually liable. Additionally the FCC holds that Wohl is a “cofounder” of Project1599 2
We find that evidence also supports piercing the corporate veil, to the extent it is necessary to find Burkman personally liable. Under federal common law, piercing the corporate veil is appropriate under an alter-ego theory where, as here, (1) there is a unity of interest and ownership such that “the personalities and assets of the corporation and the individuals are indistinct[,]” and (2) “adherence to the corporate form would sanction a fraud, promote injustice, or lead to an evasion of legal obligations.”
I genuinely hope that the Biden Administration nominates Jessica Rosenworcel as the FCC Chair…
Relevant Documents as to Wohl/Burkman Robocalls
See FCC NAL, found here
See FCC August 24, 2021 Press Release, found here
See SDNY October 2020 Civil Case Concerning Wohl/Burkman Robocall Order, found here
See October 2020 - Michigan AG Nessel Files Felony Charges Against Jack Burkman, Jacob Wohl in Voter-Suppression Robocalls Investigation, charging documents -each are charged with;
Election law – intimidating voters, a felony punishable by up to five years;
Conspiracy to commit an election law violation, a felony punishable by up to five years;
Using a computer to commit the crime of election law – intimidating voters, a felony punishable by up to seven years; and
Using a computer to commit the crime of conspiracy, a felony punishable by up to seven years.
See May 7 2021 - Michigan AG Nessel’s press release - “Two men accused of intimidating minority voters in Detroit and other cities through a robocall meant to suppress turnout in the Nov. 2020 election will stand trial after a failed dismissal attempt
See August 24, 2021 - Michigan AG Nessel’s Press Release -concerning the August 24th FCC proposed fines as to Wohl/Burkman unlawful Robocalls
For now I think you’re mostly caught up but I have to get back to my bonbons and beans…
In late 2020 the Lawyers Committee contacted the FCC citing various concerns about the Wohl/Burkman robocalls; thereafter the Committee filed a civil lawsuit in the SDNY
at the preliminary hearing, both Wohl & Burkman admitted to the court that they created and sent the robocalls and “purposefully trying to inspire fear about voting by mail” -they both attempted to argue their conduct were not unlawful. Notwithstanding the evidence collected from a parallel criminal prosecution in Michigan also showed that they explicitly targeted Black neighborhoods
Oct. 28, 2020the Court issued a temporary restraining order, finding that plaintiffs are likely to prevail on their claims that the robocalls infringe on an individual’s right to vote, free of any intimidations or threats. In his ruling, Judge Marrero stated the two citizens were engaging in “electoral terror,” provoking the same types of fear that the Ku Klux Klan sought to produce. Judge Marrero also asserted that the court needed to act swiftly and effectively to combat these modern methods of voter intimidation.
The court prohibited the defendants from sending any more robocalls, text messages, or similar forms of mass communication before Election Day without prior approval and required them to send a “curative” robocall notifying all recipients of the first robocall that it was false and illegal.
Praise Sweet Baby Jesus, remember that time Project 1599 and Burkman blocked me on Twitter August 16, 2020 👇🏻
Take their money first, and their freedom second. Karma, smiling as she eats her bon-bons….
Will Burkman be sanctioned or have his law license suspended?