Is that you Tom Dorsher?
So imagine a guy who decided he would stop unwanted robocalls by blasting scammers with calls until their network was shut down?
He might seem like an American hero right?
One might call him the Batman of TCPAWorld– a vigilante bent on taking matters into his own hands to stop unwanted calls.
Well the FCC definitely saw it differently and just issued a $100MM penalty against him.
The story here is really fascinating.
The FCC just imposed a penalty of $116,156,250 against a guy named Thomas Dorsher and companies he apparently helped run/found– ChariTel Inc, Ontel Inc, and the regrettably-named ScammerBlaster Inc (what was he thinking?) for violating the TCPA.
Before we dive into the facts there is one critical thing to keep in mind– there were only 20,650 allegedly illegal calls at issue here. So this amounts to a breathtaking fine of $5,625.00 per call.
Now there are very few things in life that will net a fine of $5,6325.00.
Litter on the highway? Thousands bucks max.
Park in a handicap spot? $300-400 bucks.
Run a red light? Drive in a carpool lane? Graffiti tag “El Barto”? All under $500.00 max.
Even something truly outrageous like taking a gun on an airplane or smoking in an airport bathroom will only net a fine of $4k under the notoriously strict FAA and TSA guidelines.
But making a prerecorded call without consent? Over $5k a pop if the FCC catches you.
And unlike all the other penalties just discussed, the illegal phone call stunt can–and almost always is–done repeatedly and at high volume before the bad guy gets caught. So whereas you can only park a car across three handicap spots max,– and a well-armed protagonist in a first-person shooter might manage to haul 15-20 weapons in inventory somehow–an iterant robocaller might manage tens of thousands of violations in a single day. Resulting in, well, insanely high penalties. and that makes TCPAWorld the most fascinating place in the entire legal universe.
So back to our story. (and its weirdness.)
Apparently this guy Docher started a company that would blast scammers out of existence. But first he had to find them.
So he began making robocalls to businesses with 800 numbers warning them–in the most ironic of fashions–about scam calls.
Here is the message that was being played:
This is an important public service announcement. There is a rise in scam calls impacting people around
the world. Many of these scammers are directly funding terrorist organizations, and in 2017, 16 billion
dollars was scammed from Americans. Much of this money is used to fund terrorist organizations such as the Al-Qaeda and ISIS to further hurt our neighbors around the world. It is critical that you report any phone
calls from these scammers to the FCC or to the phone company of the scammer. You can use free carrier
look up tools to identify the carrier and then call or email the carrier so that the scammer’s phone system
is shut down. Most importantly, if someone with a foreign accent claims to be the IRS, Social Security
Administration Office, Microsoft, Amazon, Cash App, or any other questionable source that generally
doesn’t call you, immediately hang up the call and report it on our website, scammerblaster.com. Again
that’s scammerblaster.com. Knowledge is power. If everyone refuses to fall victim to these scams, then the
scammer’s revenue source will dry up and together we can get this problem significantly reduced.
So the guy sent messages to businesses promoting his business in hopes of getting customers to blast scammers.
But, in doing so, he became a spammer himself!
It gets better.
Apparently the spammer sent his messages to AT&T’s toll free fraud protection hotline.
*insert facepalm emoji here*
AT&T, of course, alerted the FCC about the calls and attested it never consented to receive them.
Since Dorsher owned the intermediary carrier transmitting the calls, he was actually paid by the users of the 800 number, and he apparently used that revenue to fund OnTel’s operations, namely, launching telephone denial of service (TDoS) attacks against other companies.
But that was apparently the concept between SscammerBlaster. It would blast the bad guys with unwanted calls to shut down their network.
So why, one may ask, is this a bad thing?
Per the FCC it doesn’t matter why he did what he did. All that matters is that the calls promoting his business were illegal. And he doesn’t get a free pass just because he was trying to blast other spammers:
Dorsher claims that he “acted in good faith and with the interests of protecting victims … and shutting down scammers from being able to prey on innocent Americans.” There is no good faith or public interest exception to the TCPA, however, and Dorsher’s attempted defense in this regard thus fails.
Next Dorsher claimed he can’t be held liable because a “telecom lawyer”–Thomas H. Rowland–apparently told him what he was doing was legal.
Now, I will say I see a lot of lawyers giving really bad advice out there. And it is something that really pains me. As the country’s best known telecom lawyer (which I assume I am) I have made it my mission to spread as much information and education and content about the TCPA and telecom law in this nation as I can–and to make it as simple as possible. And while I only provide actual legal advice to my clients, I freely share a tremendous amount of information in the hopes of empowering OTHER LAWYERS to really understand the law so that they, in turn, give good advice to their clients. All in the hopes of creating better case law for my own clients.
So obviously it drives me nuts when other lawyers STILL get it wrong.
So I really do empathize with Dorsher on this. If he asked a lawyer to bless this scheme–and it was blessed apparently– then I dont think he should be held liable.
But the FCC disagreed, determining–in essence–that it was unreasonable for Dorsher to rely on his lawyer’s advice related to residential calls in the context of calls to business lines:
Dorsher’s lawyer provided guidance “based on an understanding that ScammerBlaster contacts residential lines[.]” In his response, Dorsher admits that toll free numbers are generally business numbers, and that he knew he was calling businesses. Thus, he could not reasonably have relied on the legal opinion.
It is not clear to me, then, whether this was the lawyer screwing up or the client screwing up. But either way– OMG.
But Dorsher was not going down without a fight:
Dorsher asks, “[h]ow could a jury possibly be convinced that I’m on an equal plateau of those scammers who stole hundreds of millions of dollars from Americans, whereas I have never asked for money, nor do I sell any product or service?” Dorsher states, “I have acted in good faith when educating the public about scams … and with the interests of protecting victims in view and shutting down scammers from being able to prey on innocent Americans.” 100 Dorsher also states that “[i]t is assumed/implied … that I am responsible for TDoS attacks that have affected the telecommunications network. Oh yeah? Where is the proof? No proof of this outrageous claim exists because this has never happened.”
You can tell from these sentiments that Dorsher feels like he is being treated roughly here. And maybe he is. But the FCC was definitely unmoved mostly, it seems, because Dorsher was acting like a vigilante who did no real research before he launched his attacks on supposed scammers:
Dorsher launched his attacks with little to no vetting that the target was actually an illicit scammer. Such conduct is extremely reckless and dangerous. Moreover, Dorsher’s conduct belies his claims that he acted in good faith with the sole intention of educating the public about scam calls because the Dorsher Enterprise’s underlying motive behind the robocalls was to generate revenue to fund these reckless TDoS attacks
Now I am not siding with Dorsher here–anyone who takes the law into his own hands will always be subject to the law himself. But I do wonder whether Dorsher is the type of guy who the FCC should be focused on in the grand scheme.
But then again if more people followed his example and started launching their own DoS attacks on our carrier network things could get really bad out there.
I want to dig deeper here. If you are reading Mr. Dorsher–or anyone reading this has his contact information– please reach out to me. Would like to discuss and maybe get you on our podcast.
More to come on this.