While telemarketers, debt collectors and others wait for the Federal Communications Commission (FCC) to answer technical questions such as “EXACTLY what is an autodialer,” the FCC has just made clear that the agency, at least, knows one when it sees one! In companion orders released on Friday (3/15/13), the FCC issued citations to two robocallers (and their owners, principals and officers) for making millions of automatically dialed calls, and using prerecorded or artificial-voice messages (robocalls), to wireless phone numbers without prior authorization from the call recipients; and for failing to provide certain required identifying information in violation of the Telephone Consumer Protection Act (TCPA).

In its investigation, FCC staff members compared lists of the thousands of phone numbers, to which the scrutinized companies had made autodialed and/or prerecorded message calls, to an industry-standard, commercially available database of wireless numbers (assigned and ported) to establish which numbers called by the companies belonged to mobile phones. Then, just for good measure, the agency called a sampling of the numbers to see if any of the called parties had given prior consent to be contacted on their cellphones.

Anyone making robocalls should be aware that, once any call to a wireless phone is established, under the law, the burden switches to the calling party to establish that it had the prior consent necessary to call that phone using an auto-dialer and/or leaving a prerecorded or artificial-voice message. The importance of keeping good records when advance consent has been obtained (in writing in the case of telemarketing calls) cannot be over-emphasized.

While, at this stage, these two FCC citations only act as a warning, they require each company to certify within fifteen days that it has ceased making robocalls to wireless phones without prior authorization and that the calls it does make include the required identifications. If either entity violates its certification, it may then be found liable not only for the unlawful conduct following the certification, but for the original conduct that led to the citation in the first place.

As the FCC pointed out in the orders, a “subsequent forfeiture action based on just the first three hundred (300) of those violations, calculated at the statutory maximum of $16,000 per violation, would result in a potential forfeiture of four million, eight hundred thousand dollars ($4,800,000) against the Company.” In one of the cases, about 4.7 million violations occurred in just the three months of call records reviewed by the agency staff. You do the math…and this does not even take into consideration the inevitable piggy-back class actions that will be filed regardless of whether the entities ever again violate the TCPA.

If you are a telemarketer, a debt collector or anyone else who uses an autodialer or leaves an automated message regarding your business activities (and this aspect of the law even applies to political calling and charitable solicitations), it is important to evaluate the procedures you have in place to ensure compliance with the TCPA by all of your employees and agents. Don’t forget, you are responsible even if you outsource your calling to third-party vendors.