SAN DIEGO — The Federal Communications Commission has fined a San Diego man and his telemarketing company nearly $10 million for "spoofed" Caller IDs on robocalls made ahead of the 2018 primary election that contained false accusations about a candidate in a North County state assembly race.
According to the FCC, Ken Moser and his company, Marketing Support Systems, displayed the Caller ID number of a rival telemarketing company on some 47,610 pre-recorded robocalls in violation of the Truth in Caller ID Act.
The act prohibits manipulating Caller ID information with the intent to defraud, cause harm or wrongfully obtain anything of value.
The competitor, HomeyTel Inc., received many angry complaints from consumers and a cease-and-desist letter from the candidate, according to the FCC.
The pre-recorded calls made May 30-31, 2018, raised accusations of sexual harassment against Phil Graham, a Republican who was battling several others in the June 5, 2018 primary for the 76th state assembly district seat.
The accusations had already been debunked by the San Diego County Sheriff, which released results of an investigation on May 29, 2018. The accuser eventually pleaded guilty to filing a false report.
Moser disputes the $9,997,750 fine, calling the action politically motivated.
"I was told by two top attorneys that specialize in FCC matters that it's normal that this process can take two years," he said. "So today's quick work without a counter to my answer (to the FCC allegations) appears unusual."
Among his many assertions in defense, Moser contends that Marketing Support System used a spoofed Caller ID to protect the identity of its client, who feared reprisals.
While he knew the spoofed Caller ID number once belonged to HomeyTel, he says that he believed the company was no longer using it because it was inactive.
HomeyTel's last filing with the California Secretary of State's Office was in 2015 and its corporate status was listed as "suspended." Its owner, Conrad Braun, moved to Mexico in 2014, according to court documents.
Since the fine is based on Moser's intent to harm a competitor, "the obvious non-existence of this competitor seems to be vital evidence missed by the FCC," Moser said in a filing with the agency.
In a written statement, FCC Chairman Ajit Pai said Moser's assertion that he didn't intend to harm HomeyTel isn't credible. The two companies had been involved in a lawsuit in 2013.
"Moser intentionally chose to use a phone number he knew belonged to a business rival with whom he had a bitter, litigious history," wrote Pai. "One would have to be rather naive to think that this was not done with the intent to cause harm."
FCC Commissioner Michael O'Reilly dissented to part of the FCC action because it found that Moser harmed not only HomeyTel but also the households that received the calls.
O'Reilly said the evidence fell short that Moser had the required intent to harm households. Rather, he likely spoofed the Caller ID to protect his client's wishes to remain anonymous.
"In other words, he falsified Caller ID not to harm the call recipients, but to engage in anonymous speech, the type of interest that the Supreme Court has deemed to be protected under the First Amendment, including in an election context," he said.
But O'Reilly did believe the evidence supported an intent to harm HomeyTel.
FCC spokesman Will Wiquist said the commission gave Moser a chance to respond in writing when it initially brought the forfeiture order in December 2019, which he did.
"The Commission then reviewed that submission and took today's action," said Wiquist in an email. "We expect the party to pay the fine. If it is not paid, we generally refer the matter to the Department of Justice, which may end up taking the target to court to collect the fine."