The Federal Communications Commission Thursday said it plans to fine a San Diego firm nearly $10 million for allegedly spoofing a competing company while sending accusatory robocalls about former state Assembly candidate Phil Graham before the 2018 primary.
Telemarketing company Marketing Support Systems and its owner, Kenneth Moser, made more than 47,000 unlawful robocalls over a two-day period in May 2018, according to the FCC.
The commission alleges Moser “spoofed” the calls, making it look like a competing company, HomeyTel Network, made the calls. Spoofing is when someone disguises their phone number to appear as someone else’s number on caller ID.
The pre-recorded calls featured a female voice alleging that Graham was “creepy” and “harassing a woman,” the Voice of San Diego reported in January.
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Graham, a Republican who is the stepson of former Gov. Pete Wilson, was a leading candidate for the seat representing the 76th Assembly District at the time.
Shortly before the primary election, he was accused of kissing a woman against her wishes.
The San Diego County Sheriff’s Department investigated the allegation and, after talking to witnesses and viewing surveillance video, announced that the allegations were unfounded — before the robocalls went out.
The woman who accused Graham, Nichole Burgan, later pleaded guilty to filing a false police report in February and was sentenced to two days in county jail and three years’ probation.
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Graham has said the allegation cost him the election and his reputation. He lost the primary to two Democrats — Elizabeth Warren and Tasha Boerner Horvath, who won the general election.
Former Assembly candidate Phil Graham, of Encinitas, was at the heart of the FCC’s investigation into the telemarketer.
(Courtesy of Phil Graham)
The FCC’s proposed fine against Moser and his company is not related to the inaccuracy of the call’s claims, but to the fact that the calls violated the federal Truth in Caller ID Act and the Telephone Consumer Protection Act, the agency said.
Moser manipulated caller ID information to harm his competitor — HomeyTel Network —and sent more than 11,000 prerecorded voice messages to wireless phones alone, without the phone owner’s consent, according to the FCC.
“The FCC doesn’t (and shouldn’t) have the authority to police truthfulness in political campaigns,” said FCC Chairman Ajit Pai in a statement.
“But we can police unlawfully spoofed robocalls. And that’s relevant here because Kenneth Moser, through his telemarketing company, Marketing Support Systems, apparently made 47,000 of these robocalls over the course of two days. When he did that, he didn’t include accurate caller ID information.”
Moser said in an email Thursday that he had not been contacted by the FCC but has been fully cooperating with subpoenas from the California Fair Political Practices Commission related to this issue since the spring.
He said that the FCC’s explicit mention of the political element of the complaint shows that the fine is politically motivated and that Graham’s relationship to a former governor clearly “makes a difference.”
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“I have never been contacted by the FCC which I find disturbing as this was clearly political speech,” he said in an email. “In this case I was simply the vendor hired to transmit someone else’s message. I do it for D’s and R’s alike,” referring to Democrats and Republicans.
Moser said he disclosed to the California FPPC who hired him to transmit the message, but he would not disclose the woman’s identity to the San Diego Union-Tribune “due to client privilege.”
“I didn’t have anything to do with creating the message, it was simply emailed to me and I was instructed that she wanted to remain anonymous as I’ve done with hundreds of clients,” he added. “It’s not my job as a vendor to judge someone’s political speech.”
Graham and his legal team said in a statement Thursday that they hope the U.S. Department of Justice will open an investigation into the matter.
“I am pleased that the Federal Government has found that there was violations of law against my campaign and I am hopeful that those who violated the law will be held fully accountable,” Graham said.
Conrad Braun, the manager of San Diego-based HomeyTel and its former owner, said by phone Thursday that he is grateful for the FCC’s extensive investigation into the matter.
“While the damage to our business, candidate Phil Graham and other California candidates has already been done, we hope this sends a clear message for such unlawful activities within our nation in 2020 and all future elections,” said Braun, adding that HomeyTel encourages further investigation into the matter by the Department of Justice and the FPPC.
Moser and Braun have had a long, contentious relationship and have sued each other multiple times, according to court records.
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This was not the largest fine the FCC has levied against robocalling companies.
Last year the FCC reportedly approved a $120 million fine against Adrian Abramovich, of Miami, doing business as Marketing Strategy Leaders, allegedly for spoofing while placing 96.8 million fraudulent calls selling vacation deals. That same year the FCC announced an $82 million fine and a $37.5 million fine against other companies for similar offenses, according to news reports.
A Wall Street Journal story in March noted that since 2015, the FCC has ordered similar violators to pay a total of $208.4 million but a public records request revealed records of only $6,790 collected.
An FCC spokesman told the Wall Street Journal his agency lacks authority to enforce the forfeiture orders and passes unpaid penalties to the Justice Department. He added that many of the spoofers and robocallers the agency tries to punish are small operations, unable to pay the full penalties.
Staff reporter Morgan Cook contributed to this report.
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FCC to fine San Diego firm $10M for robocalls, which falsely accused Assembly candidate - The San Diego Union-Tribune
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