Federal Communications Commission FCC 22-16 Before the Federal Communications Commission Washington, D.C. 20554 ) In the Matter of ) ) File No.: EB-TCD-18-00030995 ) NAL/Acct. No.: 202232170004 ) Gregory Robbins ) FRN: 0031994122 ) Interstate Brokers of America LLC ) FRN: 0031994247 ) National Health Agents LLC ) FRN: 0031994254 NOTICE OF APPARENT LIABILITY FOR FORFEITURE Adopted: February 18, 2022 Released: February 22, 2022 By the Commission: Chairwoman Rosenworcel and Commissioner Starks issuing separate statements. TABLE OF CONTENTS Heading Paragraph # I. INTRODUCTION .................................................................................................................................. 1 II. BACKGROUND .................................................................................................................................... 2 A. Legal Framework. ............................................................................................................................ 2 B. Factual Background. ...................................................................................................................... 10 III. DISCUSSION ...................................................................................................................................... 17 A. Interstate Brokers Apparently Made 514,467 Prerecorded Voice Message Calls in Violation of the TCPA. .................................................................................................................. 18 B. Interstate Brokers apparently violated the TCPA with Intent. ....................................................... 26 C. Interstate Brokers’ robocalling campaigns generated several consumer complaints. .................... 29 IV. PROPOSED FORFEITURE ................................................................................................................ 30 A. We Propose a Base Forfeiture of $4,500 for Each Verified Apparently Unlawful Call. ............... 33 B. We Propose to Hold Interstate Brokers, National Health Agents, and Gregory Robbins Jointly and Severally Liable. .......................................................................................................... 35 1. Interstate Brokers and National Health Agents Apparently Are Alter Egos. .......................... 36 2. The Companies are Apparently an Alter Ego of Gregory Robbins . ....................................... 36 3. Piercing the Corporate Veil Serves Important Policy Goals. ................................................ 44 V. ORDERING CLAUSES ....................................................................................................................... 46 I. INTRODUCTION 1. During March 2020, Gregory Robbins, Interstate Brokers of America LLC, and National Health Agents LLC, (collectively, Interstate Brokers) apparently made 514,467 illegal robocalls to consumers. Of these calls, 246,218 were made to consumers on the National Do Not Call Registry. The recorded messages claimed that, due to the coronavirus pandemic, the annual health insurance marketplace enrollment period had been reopened, and the messages also solicited consumers to purchase health insurance products. The prerecorded voice message calls apparently violated the Telephone Federal Communications Commission FCC 22-16 Consumer Protection Act (TCPA) and the Federal Communications Commission’s (Commission’s or FCC’s) rules, which prohibit prerecorded voice message telemarketing calls without subscribers’ prior express consent. We propose a forfeiture of $45,000,000.1 II. BACKGROUND A. Legal Framework. 2. Congress enacted the TCPA to protect consumers from unwanted calls.2 In particular, Congress determined that unwanted prerecorded voice message calls are a greater nuisance and invasion of privacy than live calls.3 3. Restrictions on calls to mobile telephones. Section 227(b)(1)(A)(iii) of the TCPA and Section 64.1200(a)(1)(iii) of the Commission’s rules prohibit calls to cell phones and other mobile services, such as paging systems.4 Under the TCPA, it is unlawful “for any person . . . to make any call . . . using any automatic telephone dialing system or an artificial or prerecorded voice . . . to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call.”5 These broad prohibitions cover all prerecorded voice and autodialed calls. 4. There are two general exceptions to these TCPA prohibitions: (1) calls made for emergency purposes, and (2) calls made with the prior express consent of the called party.6 Prior express written consent is required if the calls include advertisements or constitute telemarketing.7 An advertisement is defined as “any material advertising the commercial availability or quality of any property, goods, or services.”8 The rules define “telemarketing” as “the initiation of a telephone call or message for the purpose of encouraging the purchase, or rental of, or investment in, property, goods, or services, which is transmitted to any person.”9 5. Restrictions on calls to residential telephones. The TCPA and our rules restrict prerecorded voice message calls to residential phone lines when the prerecorded message includes an advertisement or constitutes telemarketing.10 Section 64.1200(a)(3) of the Rules states that no person or 1 Any entity that is a “Small Business Concern” as defined in the Small Business Act (Pub. L. 85-536, as amended) may avail itself of rights set forth in that Act, including rights set forth in 15 U.S.C. § 657, “Oversight of Regulatory Enforcement,” in addition to other rights set forth herein. 2 47 U.S.C. § 227(b). 3 Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02-278, Report and Order, 18 FCC Rcd 14014, 14115, para. 165 (2003) (2003 TCPA Order); Mims v. Arrow Financial Services, LLC, 565 U.S. 368, 372 (2012) (recognizing Congress’ finding that robocalls are an invasion of privacy). Courts have recognized that preserving the sanctity of the home is an important value, see Frisby v. Schultz, 487 U.S. 474, 484 (1988), and have found that invasion of privacy confers Article III standing in TCPA cases. See, e.g., Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037, 1043 (9th Cir. 2017); LaVigne v. First Community Bancshares, Inc., 215 F. Supp. 3d 1138, 1146-47 (D.N.M. 2016). 4 See 47 U.S.C. § 227(b)(1)(A)(iii); 47 CFR § 64.1200(a)(1)(iii). 5 Id. 6 See 47 U.S.C. § 227(b)(1)(A); 47 CFR § 64.1200(a)(1). 7 47 CFR §§ 64.1200(a)(2)-(3). There are exceptions for calls made on behalf of tax-exempt nonprofit organizations or a call that delivers a “health care” message made by an entity identified in the HIPAA Privacy Rule. Id. 8 47 CFR § 64.1200(f)(1). 9 47 CFR § 64.1200(f)(13). 10 Section 227(b)(1)(B) of the Communications Act prohibits any person “to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express (continued….) 2 Federal Communications Commission FCC 22-16 entity may “[i]nitiate any telephone call to any residential line using an artificial or prerecorded voice to deliver a message without the prior express written consent of the called party” unless one or more of five enumerated exceptions apply. These exceptions are (a) calls for emergency purposes, (b) calls not made for a commercial purpose, (c) calls made for a commercial purpose that do not include advertisements or telemarketing, (d) calls made by or on behalf of tax-exempt nonprofit organizations, and (e) calls that deliver a “health care” message made by, or on behalf of, a “covered entity” or its “business associate,” as those terms are defined in the Health Insurance Portability and Accountability Act of 1996 (HIPAA).11 Accordingly, calls made to residential numbers from for-profit entities that include advertisements or telemarketing require prior express written consent. 6. Prior express written consent. Our rules define what constitutes prior express written consent, for purposes of both mobile and residential calls.12 Prior express written consent is a written agreement between the caller and the called party that authorizes the caller to deliver advertisements or telemarketing messages using an auto-dialer or an artificial or prerecorded voice.13 This consent must specify the phone number to be called and must include the called party’s written or electronic signature. This consent may take the form of a physically written signature, or a button press affirming an agreement.14 The calling party must obtain consent before making any telemarketing calls. 7. Consent language must include a clear and conspicuous disclosure informing the person (a) that by signing the consent agreement the person authorizes the seller to deliver (or cause to be delivered) telemarketing calls using an automatic telephone dialing system or an artificial or prerecorded voice and (b) that they are not required to sign the agreement, or agree to enter into such an agreement, as a condition of purchasing any property goods, or services.15 Clear and conspicuous language means notice that would be “apparent to the reasonable consumer, separate and distinguishable from any advertising copy or other disclosures.”16 In cases involving electronic forms, courts analyze whether individuals had reasonable notice to manifest consent to the terms.17 consent of the called party unless the call is initiated for emergency purposes or is exempted by rule or order by the Commission...” 47 U.S.C. § 227(b)(1)(B). The Commission set forth specific exemptions to the prohibition in its Rules. 11 See 47 CFR § 64.1200(a)(3). Interstate Brokers does not meet the definition of a “covered entity” or a “business associate” as defined by the HIPAA privacy rule. Interstate Brokers does not provide health care and is not a health plan, nor is it responsible for handling consumers’ health information. See 45 CFR § 160.103. As such, Interstate Brokers is not protected by exceptions that are intended to allow healthcare providers to contact patients with important health care information. See 47 CFR § 64.1200(a)(3)(v). Further, Interstate Brokers calls are telemarketing sales calls which do not constitute a healthcare message. Id; see Sullivan v. All Web Leads, Inc., No. 17-1307, 2017 WL 2378079, at 7 (N.D. Ill. Jun. 1, 2017) (finding that calls to potential purchasers of health insurance did not contain a health care message). 12 See 47 CFR § 64.1200(f)(9); see also Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Report and Order, CG Docket No. 02-278, Report and Order, 27 FCC Rcd 1830, 1838-40, paras. 20-26 (2012) (requiring prior express written consent for all telephone calls using an automatic telephone dialing system or a prerecorded voice to deliver a telemarketing message to wireless numbers and residential lines). 13 47 CFR § 64.1200(f)(9). 14 47 CFR § 64.1200(f)(9). 15 Id. 16 47 CFR § 64.1200(f)(3). 17 See Sgouros v. TransUnion Corp., 817 F.3d 1029, 1035 (7th Cir. 2016) (Consumers who clicked “I Accept” button on credit reporting agency's website did not agree to arbitration where the web page contained no clear statement that purchase was subject to any terms or conditions and the text stating that purchase was conditioned on accepting the terms fell below what was visible on the website.) 3 Federal Communications Commission FCC 22-16 8. In determining whether disclosure language is sufficient, we consider all relevant facts, including among other things: (a) whether the content of the disclosure language is specific or vague, (b) whether the pertinent disclosure language is prominently displayed or “buried in a lengthy disclosure,” (c) whether the consumer was permitted to read the entire disclosure before agreeing to its terms, and (d) whether the “Submit” or “Agree” button was placed above or below the disclosure language.18 9. In 2019 Congress passed the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED Act), which gave the Commission additional tools to pursue those who make illegal robocalls.19 Among other things, the TRACED Act removed the citation requirement for Commission enforcement of the TCPA against non-regulated entities.20 The TRACED Act also authorized the Commission to assess an additional penalty, not to exceed $10,000, for intentional TCPA violations.21 B. Factual Background. 10. Americans receive billions of unsolicited robocalls each year.22 Some of the most common robocalls are telemarketing calls placed by health insurance lead generators.23 Interstate Brokers is one such lead generator. 11. Gregory Robbins runs Interstate Brokers, which does business under at least two different names, Interstate Brokers of America LLC, and National Health Agents LLC. As a lead generator, Interstate Brokers places robocalls to potential purchasers of insurance coverage and then transfers those calls to its customers. 12. The Commission’s investigation revealed Interstate Brokers’ business model. First, Interstate Brokers collected consumers’ contact information by either (a) purchasing lists of active phone numbers from third-party sellers, or (b) obtaining information from consumers that visited Interstate Brokers’ websites and submitted their contact information.24 Interstate Brokers operated several websites, 18 See, e.g., F.T.C. v. Amazon.com, Inc., 71 F. Supp. 3d 1158, 1159 (W.D. Wash. 2014) (finding that consent language was ineffective because it was buried in a lengthy disclosure that was “below the fold” forcing the consumer to scroll down to read); Sullivan v. All Web Leads, Inc., No. 17-1307, 2017 WL 2378079, at 7 (N.D. Ill. Jun. 1, 2017) (finding that the defendant had not secured consumer’s prior express written consent to automatically call consumer because defendant’s website did not contain language notifying consumer that he would be called and because legal disclosures appeared below the “Submit” box); Specht v. Netscape Comm'n Corp., 306 F.3d 17, 30 (2d Cir. 2002) (refusing to enforce arbitration agreement and holding that consumer had not provided valid consent because consumers were forced to scroll down the webpage to a screen located below the “Download” button). 19 Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act, Pub. L. No. 116-105, 133 Stat. 3274 (2019) (codified as amended in 47 U.S.C. § 227) (TRACED Act). 20 Section 3 of the TRACED Act removed the requirement that the Commission issue a citation, or warning, pursuant to section 503(b)(5) of the Communications Act before the Commission may propose a monetary forfeiture under section 227(b). See TRACED Act § 3(a)(1), 133 Stat. at 3274 (adding 47 U.S.C. § 227(b)(4)(A)). 21 TRACED Act § 3(a). 22 In 2019, Americans received an estimated 58.5 billion robocalls, marking a 22 percent increase over the year before. See Tal Axelrod, 58.5 billion robocalls made in 2019, up 22 percent, The Hill (Jan. 15, 2020), https://thehill.com/policy/technology/478388-585-billion-robocalls-made-in-2019-up-22-percent. 23 See Federal Communications Commission, Health Insurance Scam Attempts Spike During Open Enrollment, https://www.fcc.gov/health-insurance-scam-attempts-spike-during-open-enrollment (last visited Oct. 26, 2020). 24 See Declaration of Gregory Robbins, Cain et al v. National Health Agents, LLC (No. 1:19-cv-10487) (D. Mass. 2019) (in October 2019, Gregory Robbins described, under penalty of perjury, how his business operations obtained the phone numbers that he later dialed as part of his robocalling campaign); see also Declaration of Gregory Robbins at 2 (“One way that NHA markets insurance products is through telemarketing, which, for the purposes of (continued….) 4 Federal Communications Commission FCC 22-16 including interstateba.com and nationalhealthagents.com.25 Consumers who visited these websites were presented with lead capture pages,26 which encouraged them to complete a quote request form and provide their full name, email, and phone number. 13. Interstate Brokers then loaded these phone numbers into a computer with software installed that automatically called each number and played a prerecorded message offering limited- duration health insurance policies.27 For example, one message said, “Many states opened enrollment options to combat the COVID-19 virus and our plans include telemedicine services that would allow you to see a doctor over the phone or a video that could treat common sickness like the cold and flu. Give me a call back, at our phone number [which] is {[ ]} and I can go over what is still available in your area.” Another said, in pertinent part, “The recent enrollment extension for healthcare is ending soon and I was calling to see if we could assist you in securing an affordable healthcare plan.”28 Voice recognition software would identify when a consumer answered the call. If a consumer responded by pressing a number on their phone, or by staying on hold, the system automatically transferred the call to a call center operated by Interstate Brokers.29 Consumers were then offered insurance products sold by one of several insurance companies that had hired Interstate Brokers. 14. In March 2020, the Industry Traceback Group (ITG)30 alerted the Commission that Interstate Brokers was conducting a series of potentially illegal robocalling campaigns that referenced the COVID-19 pandemic.31 ITG traced one of these campaigns, involving the sale of health insurance, to {[ ]} (Dialing Platform), which informed ITG that the client making the calls was Gregory Robbins d.b.a Interstate Brokers of America LLC. The Dialing Platform provided the Bureau with a month’s worth of call records, as well as a list of the toll-free numbers that were used to place those calls.32 According to these call records, Interstate Brokers made 514,467 robocalls during the month of March 2020.33 15. The Bureau analyzed the details of the 514,467 robocalls using an industry-standard, commercially available software and a database of known assigned and ported wireless numbers to this affidavit will be described as the purchase of consumer information containing phone numbers with the intention of dialing that phone number to generate interest in a particular product that is sold over the phone.”). 25 See Screen captures (Oct. 10, 2020) (on file in EB-TCD-18-00030995). 26 In telemarketing marketing, lead capture pages are websites that are used to collect contact information from consumers who might be interested in the goods or services that the telemarketer provides. 27 See Declaration of Gregory Robbins, Cain et al v. National Health Agents, LLC at 5 (No. 1:19-cv-10487). 28 See recorded voicemails (on file in EB-TCD-18-00030995) (“Hi this is Ashley with the health enrollment center. I am just following up regarding your health insurance quote. Many states opened enrollment options to combat the COVID-19 virus and our plans include telemedicine services that would allow you to see a doctor over the phone or video that could treat common sicknesses like the cold and flu. Give me a call back at our phone number it is {[ ]} and I can go over what is still available in your area. Thank you.”). 29 Id. 30 USTelecom’s ITG currently serves as the registered consortium to conduct private-led call traceback efforts under section 13(d) of the TRACED Act. Implementing Section 13(d) of the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (TRACED Act), EB Docket No. 20-22, Report and Order, DA 21-1047, at 1, para. 1 (EB Aug. 25, 2021). 31 See USTelecom referral (on file in EB-TCD-18-00030995). 32 See subpoena response (on file in EB-TCD-18-00030995). Material set off by double brackets {[ ]} is confidential and is redacted from the public version of this document. 33 Id. 5 Federal Communications Commission FCC 22-16 determine whether any of the robocalls went to wireless phones.34 From this analysis, Bureau staff confirmed that Interstate Brokers made 514,196 robocalls to wireless phones and 271 robocalls to landline phones. Bureau staff also confirmed that 246,218 calls were placed to numbers on the National Do Not Call Registry.35 Bureau staff contacted recipients of the robocalls and spoke with 25 of them to confirm that they were the owners of the called numbers and had received the calls, and to determine whether any of them had consented to receive calls from Interstate Brokers. None of the consumers that the Bureau contacted gave consent—written or otherwise—to Interstate Brokers to make robocalls to their phones. 16. Bureau staff listened to the prerecorded voice messages that Interstate Brokers used in its robocalls. All of the recordings that staff reviewed encouraged consumers to call Interstate Brokers to discuss opportunities to purchase health insurance products, and many referenced the ongoing COVID-19 pandemic to motivate consumers into purchasing the insurance products.36 The recorded messages claimed that the open enrollment periods had changed due to COVID-19.37 III. DISCUSSION 17. We find that Interstate Brokers apparently willfully and repeatedly violated the TCPA by placing 514,467 prerecorded voice message telemarketing calls without the prior express written consent of the called party. A. Interstate Brokers Apparently Made 514,467 Prerecorded Voice Message Calls in Violation of the TCPA. 18. Prohibited Telemarketing Calls. Interstate Brokers apparently made 514,467 prerecorded voice message calls without consent in a single month.38 We determined that Interstate Brokers made 514,196 prerecorded voice message calls to wireless numbers and 271 prerecorded voice message calls to residential landlines.39 Commission staff reviewed three sample recordings or transcriptions of the robocalls. Some of the messages offered to “assist . . . in securing an affordable healthcare plan.”40 Other messages offered to “go over what is available,” suggesting that Interstate Brokers would assist the consumer in procuring health insurance.41 Accordingly, all of the prerecorded voice message calls appear to be telemarketing calls. Recipients were instructed to call a toll-free number to speak to a health insurance salesperson who would then provide them with a quote for a new policy. Interstate Brokers is not 34 See Interactive Marketing Solutions, EasyID, https://www.ims-dm.com/mvc/page/easyid/ (last visited Dec.13, 2020). EasyID is Interactive Marketing Solution’s software that allows clients to eliminate wireless numbers from calling lists. Id. Interactive Marketing Solutions, Inc. is a member of the Direct Marketing Association and bills itself as “the country’s largest single-source supplier” of data identifying telephone numbers that have been assigned or ported to wireless devices, “to help businesses comply with state and federal legislation.” Interactive Marketing Solution – Do Not Contact List Solutions, https://www.ims-dm.com/mvc/index.php (last visited May 3, 2020). 35 Federal Trade Commission, National Do Not Call Registry, https://www.donotcall.gov/. 36 Message Recording (on file in EB-TCD-18-00030995). 37 We are not aware of any entity that had modified its open enrollment in March 2020 to accommodate concerns about the pandemic. Thus, although the veracity of the statements is not material to whether the calls violated the TCPA, the language used in the messages appears to have been designed to prey upon consumers’ heightened health concerns by giving false information to induce them to purchase insurance. 38 Interstate Brokers placed as many as 28 calls per minute. See subpoena response (on file in EB-TCD-18- 00030995). For example, on March 4, 2020, at 6:16 PM, Interstate Brokers placed 25 calls, at 6:17 PM 24 more calls, at 6:18 PM 22 more. See id. 39 See Call Detail Records (on file in EB-TCD-18-00030995). 40 Message Recording (on file in EB-TCD-18-00030995). 41 Id. 6 Federal Communications Commission FCC 22-16 a “covered entity” or “business associate” as defined by the HIPAA privacy rule, which would exempt it from the TCPA’s prohibition against certain robocalls.42 19. Lack of Consent. The evidence shows that Interstate Brokers apparently lacked prior express written consent for its telemarketing robocalls, in violation of the Commission’s rules. To have prior express written consent, a seller must obtain a written agreement from the consumer that clearly authorizes the seller to make autodialed or prerecorded advertising or telemarketing calls.43 In obtaining that written agreement, the seller must provide the consumer with clear and conspicuous notice that they are agreeing to receive telemarketing calls.44 Interstate Brokers apparently failed to provide “clear and conspicuous” disclosures and thus failed to obtain prior express written consent for the prerecorded voice message calls.45 20. One of Interstate Broker’s websites, nationalhealthagents.com, did not include any disclosure language.46 Visitors to the site were presented with a sparse landing page consisting of a background image depicting doctors and nurses working in a hospital setting.47 At the center of the page were three fields directing visitors to enter their name, email address, and phone number. The website did not list any disclosure language on the lead capture page or anywhere else on the website. After the three fields were filled out and the visitor clicked “Show Plans,” a green banner announced that “your information has been submitted successfully; we look forward to helping you find the right health insurance to fit your needs.”48 The consumers were never warned that, by submitting their contact information, they would receive robocalls. Interstate Brokers’ nationalhealthagents.com lead capture website did not provide any disclosure language before the consumer submitted the form. Thus Interstate Brokers apparently failed to provide clear and conspicuous notice that the consumer was giving his or her permission to receive prerecorded telemarketing calls.49 21. On Interstate Broker’s other website, interstateba.com, the notice was neither clear nor conspicuous. When consumers visited the lead capture page, they were directed to fill out a quote request form that included fields for the consumer’s full name, email, and phone number.50 Directly below the consumer contact information inputs were two pre-selected boxes labeled “Email Opt-in” and “SMS Opt- in.” Then, under those pre-selected boxes was a large orange “Submit” button that read “Get Plans Now!”51 Thus, the consumer arguably had notice, prior to submitting the contact information, that the consumer might receive emails or text messages. There was no indication that the consumer was consenting to auto-dialed or prerecorded voice message calls. In fact, by mentioning specific types of 42 The Commission has exempted HIPAA-related calls that deliver healthcare message from the prohibition on using an artificial or prerecorded voice to deliver a message to a wireless or residential number. These exceptions are intended to allow healthcare providers to contact patients with important health care information and apply only to a “covered entity” or “business associate” as defined by the HIPAA privacy rule. See 45 CFR § 160.103. 43 47 CFR § 64.1200(f)(9). 44 47 CFR § 64.1200(f)(9)(1); 47 CFR § 64.1200(f)(3) (“Clear and conspicuous means a notice that would be apparent to the reasonable consumer, separate and distinguishable from the advertising copy or other disclosures.”). 45 See H.R. REP. No. 116-41, at 12 (2019). (“the calling party must knowingly use an automatic telephone dialing system to intentionally place calls to covered numbers without a reasonable basis for believing it had the necessary consent to call.”). 46 See Screen capture of nationalhealthagents.com landing page (Oct. 10, 2020) (on file in EB-TCD-18-00030995). 47 Id. 48 Id. 49 47 CFR § 64.1200(f)(3). “Clear and conspicuous means a notice that would be apparent to the reasonable consumer, separate and distinguishable from the advertising copy or other disclosures.” 50 See Screen capture of interstateba.com (Oct. 10, 2020) (on file in EB-TCD-18-00030995). 51 Id. 7 Federal Communications Commission FCC 22-16 communications, a consumer would reasonably expect that Interstate Brokers would use only those specified methods to contact a consumer who did not opt out. We therefore find that the disclosure does not appear to be clear. 22. If the consumer happened to scroll down to the next screen, the consumer might have seen, in small font, a notice that consumers were consenting to be contacted in a variety of methods, including via automatic telephone messaging systems.52 But it is unlikely that a consumer would have scrolled to the next screen before submitting its information, and even less likely that a consumer would have scrolled to the next screen to look for such disclosures because the consumer had already been presented with “opt-out” options regarding other forms of automated communications. We therefore find that the disclosure does not appear to have been conspicuous. 23. Finally, even if the disclosure had been clear and conspicuous, it did not state that Interstate Brokers might contact the consumer via prerecorded voice message; it only mentioned “direct call, automatic telephone dialing system, or by text message.”53 The calls in this case do not seem to be automatic telephone dialing system calls. An automatic telephone dialing system must have “the capacity to use a random or sequential number generator to either store or produce phone numbers to be called.”54 Interstate Brokers did not select the calls through random or sequential number generation. And we do not believe that the term “direct call” has a clear or precise meaning. Thus we do not think that it would have given a reasonable consumer sufficient notice that the consumer was consenting to receive pre- recorded voice messages. Further, a consumer might reasonably have understood a “direct call” to mean a live voice call, not a recording. Interstate Brokers’ partial disclosure language does not specify the full range of terms and is apparently misleading to the consumer as it obscures the full scope of the agreement.55 We find that Interstate Brokers apparently did not obtain prior express written consent from consumers, in accordance with the TCPA. 24. Interstate Brokers also purchased large blocks of numbers from third party providers. These leads were purchased without interacting with the consumers; thus Interstate Brokers apparently lacked the requisite prior express consent to call these consumers.56 52 See Screen interstateba.com landing page (Oct. 10, 2020) (on file in EB-TCD-18-00030995) (“By submitting this form, I verify that I have read and accept the Privacy Policy (/ Home/Privacy Policy) and Terms of Use and provide written consent via electronic signature to receive communications from Interstate Brokers of America or its Affiliates (/Home/ Affiliates) regarding my request for more information on available health coverage options via direct call, automatic telephone dialing system, email or by text message. I understand that my consent is not required as a condition of purchasing any goods or services. Message frequency may vary. Your carrier's message and data rates may apply.”). 53 See id. 54 Facebook, Inc. v. Duguid, et al., 141 S.Ct. 1163, 1173 (2021) (“In sum, Congress’ definition of an autodialer requires that in all cases, whether storing or producing numbers to be called, the equipment in question must use a random or sequential number generator.”). 55 See Sgouros v. TransUnion Corp., 817 F.3d 1029, 1035 (7th Cir. 2016) (“But what cinches the case for [Plaintiff] is the fact that TransUnion's site actively misleads the customer. The block of bold text below the scroll box told the user that clicking on the box constituted his authorization for TransUnion to obtain his personal information. It says nothing about contractual terms. No reasonable person would think that hidden within that disclosure was also the message that the same click constituted acceptance of the Service Agreement.”). 56 We have no evidence that Interstate Brokers relied on the third party to obtain consent to the calls. Even if Interstate Brokers claims such reliance, that reliance must have been reasonable and when an intermediary fails to obtain consent, the sender of the autodialed or prerecorded calls is liable for any resulting violations. See GroupMe, 29 FCC Rcd at 3444, 3446, paras. 6, 11. 8 Federal Communications Commission FCC 22-16 25. As a further check, Bureau staff called many consumers, and was able to speak with 25 consumers who received robocalls from Interstate Brokers.57 Each of the consumers with whom staff spoke confirmed that they (1) owned the telephone number at the time of the call, and (2) never consented to receive these calls.58 The Commission also received 27 complaints on its consumer complaint center, as well as complaints on other online fora, that the Bureau was able to trace back to Interstate Brokers.59 These complaints support our apparent finding that the 514,196 calls to wireless numbers and 271 calls to residential numbers that Interstate Brokers made lacked express prior consent, in violation of the TCPA. B. Interstate Brokers apparently violated the TCPA with Intent. 26. Interstate Brokers apparently intentionally violated the TCPA when it made the 514,467 telemarketing robocalls. Under the TRACED Act, the Commission may impose a greater fine for intentional TCPA violations.60 In this case, the Commission finds that Interstate Brokers apparently acted with intent. 27. The evidence shows that Interstate Brokers was demonstrably aware of TCPA requirements and their implications for the company’s conduct. First, Interstate Brokers was subject to a class action filed in 2019, alleging that the company violated the TCPA’s prohibitions against making telemarketing calls without the prior express written consent of the called party.61 This provides strong evidence that Interstate Brokers had actual (not just presumptive) knowledge of TCPA requirements and prohibitions. Second, as part of the 2019 class action, Mr. Robbins provided a signed declaration in which he asserted that his “agents participated in extensive internal training programs as well as carrier- issued training;” in order to provide effective “extensive internal training” to its employees, Interstate Brokers necessarily would have to have an understanding of the rules and regulations surrounding telemarketing practices.62 Third, to the extent that Interstate Brokers obtained telephone numbers by purchasing lists and had no prior contact with those called parties, it had no basis for believing that it had consent to make those calls. Fourth, notwithstanding its knowledge of TCPA requirements, Interstate Brokers appears to have been so cavalier in ignoring the rules that it routinely called consumers listed on the Do Not Call database.63 Commission staff determined that 246,218 robocalls – nearly half of the calls at issue – were to consumers whose numbers were listed on the Do Not Call list. This further supports our finding that Interstate Brokers apparently intentionally violated, or at least ignored, the TCPA’s consent requirements. 57 Declaration of {[ ]} (Dec. 3, 2020) (on file in EB-TCD-18-00030995); {[ ]} (Dec. 1, 2020) (on file in EB-TCD-18-00030995). {[ ]} (Oct. 27, 2020) (on file in EB-TCD-18- 00030995). Most of the consumers that staff tried to reach did not answer the telephone. However, those that did speak to Bureau staff uniformly confirmed our apparent finding that Interstate Broker’s purported disclosures were inadequate, and the consumers did not know, or have a reasonable basis to know, that they were consenting to the prerecorded voice message calls. 58 Id. 59 See Zendesk complaint list. (on file in EB-TCD-18-00030995). 60 Under the TRACED Act, the Commission may impose a greater fine for intentional TCPA violations. However, we have chosen not to do so in this case as a larger penalty will not of preventing harmful conduct and preventing it from reoccurring. TRACED Act, section 3(a). See also H.R. REP. No. 116-41, at 12 (2019). 61 Cain et al v. National Health Agents, LLC, (No. 1:19-cv-10487), (D. Mass. Mar. 14, 2019) (plaintiffs alleged that National Health Agents made thousands of unlawful calls to consumers, including many on the national Do-Not- Call list, starting in the month of February 2019). The class action settled and the settlement is not public. 62 See Declaration of Gregory Robbins, Cain et al v. National Health Agents, LLC at 5 (No. 1:19-cv-10487). 63 Companies may not contact consumers that are listed in the Do Not Call Registry. See Federal Trade Commission, National Do Not Call Registry FAQs, https://www.consumer.ftc.gov/articles/national-do-not-call- registry-faqs, Federal Trade Commission, National Do Not Call Registry, https://www.donotcall.gov/. 9 Federal Communications Commission FCC 22-16 left was {[ ]}. Called on my work cell phone that i [sic] do no personal business on.”71 These complaints asserted that Interstate Brokers robocalled the complainants without their prior express written consent, in violation of the law. IV. PROPOSED FORFEITURE 30. We propose a forfeiture in the amount of $45,000,000. We calculate the proposed forfeiture by assessing a base forfeiture of $4,500 per each apparently unlawful robocall that we verified was made without the requisite prior, express written consent. The Commission verified 10,000 apparently unlawful prerecorded voice message calls.72 31. Section 503(b) of the Communications Act of 1934, as amended (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.”73 Section 227(b) and Section 1.80 of the Commission’s rules further authorize the Commission to impose a forfeiture against any person that violates the Act or our rules regarding calls made using an automatic telephone dialing system or an artificial or prerecorded voice.74 Section 503(b)(2)(D) authorizes the Commission to assess a forfeiture of up to $22,021 for each violation.75 For each intentional violation of section 227(b), the Act and the Commission’s rules authorize an additional penalty not to exceed $10,748.76 32. In assessing the amount of a forfeiture penalty, Section 503 of the Act requires the Commission to take into account the “nature, circumstances, extent, and gravity of the violation, and, with respect to the violator, the degree of culpability, any history of prior offenses, ability to pay, and such other matters as justice may require.”77 Further, under the Commission’s forfeiture guidelines, we may adjust a forfeiture upward for violations that are egregious, intentional, or repeated, or that cause substantial harm or generate substantial economic gain for the violator.78 A. We Propose a Base Forfeiture of $4,500 for Each Verified Apparently Unlawful Call. 33. In determining the proposed forfeiture amount, we consider prior decisions involving unlawful, unsolicited prerecorded voice message calls. As we noted in our most recent TCPA forfeiture proceeding, John M. Burkman et al., the Commission has on multiple occasions used a base forfeiture of 71 See Complaints from 800Notes.com, https://800notes.com/Phone.aspx/{[ ]}; Screen capture (on file in EB-TCD-18-00030995); The phone number {[ ]} was linked by the Commission to one used by Interstate Brokers of America. See Complaint from shouldianswer.com, https://www.shouldianswer.com/phone- number/{[ ]}; Screen capture (on file in EB-TCD-18-00030995). 72 Bureau staff verified that the calls had indicia typically associated with illegal prerecorded voice message calls. Additionally, Interstate Broker’s service provider confirmed that the verified calls were prerecorded voice message calls. 73 47 U.S.C. § 503(b). 74 See 47 U.S.C. § 227(b)(4); 47 CFR § 1.80(a)(4). 75 See 47 U.S.C. § 503(b)(2)(D); 47 CFR § 1.80(b)(9); see also Amendment of Section 1.80(b) of the Commission’s Rules, Adjustment of Civil Monetary Penalties to Reflect Inflation, Order, DA 21-1631 (EB Dec. 22, 2021) (adjusting amounts for inflation). 76 47 U.S.C. § 227(b)(4)(B); 47 CFR § 1.80(b)(5); Section 227(b) contains a one-year statute of limitations for general violations and a four-year statute of limitations for violations with intent. 47 U.S.C. § 227(b)(4)(E). 77 47 U.S.C. § 503(b)(2)(E). 78 47 CFR § 1.80(b)(10), Note to paragraph (b)(10). 11 Federal Communications Commission FCC 22-16 $4,500 for violations involving section 227(b).79 We find those cases analogous and propose to follow that same approach here, with one modification: we base the proposed fine on the subset of calls that were verified by Bureau staff. As we noted in the Burkman Notice of Apparent Liability, the earlier TCPA cases involved a smaller number of calls than the case at hand.80 We further noted in the Burkman Notice of Apparent Liability that we might look to our cases involving Truth in Caller ID Act violations, which often involve “thousands, millions, or even a billion calls,” when addressing large-scale robocalling violations.81 In the Truth in Caller ID cases, we have imposed a base forfeiture of $1,000 per unlawfully spoofed call. In most of those cases, we verified a sample of the calls and based our fine only on those verified calls.82 We find that verifying a sample of calls is equally appropriate for large-scale TCPA violations as it is for Truth in Caller ID violations. First, there may be practical limitations to the Commission’s ability to fully evaluate each call when the call volume is in the tens of thousands or higher. Second, we find that there is often diminishing value in verifying each violation in a large-scale robocalling operation, in terms of imposing a penalty and establishing a deterrent against future violations.83 We find that this approach properly balances precedent with pragmatic factors. 34. In the TRACED Act, Congress gave the Commission discretion to increase the maximum monetary penalty for intentional violations of the TCPA.84 That authorization demonstrates Congress’s frustration with robocalls and its commitment to provide sufficient monetary disincentives particularly against intentional violations. Although we find evidence to support imposing such an increased fine against Interstate Brokers, we decline to do so. We find that the $4,500 fine per apparent violation satisfies all of the purposes of monetary penalties: penalizing the company for its apparently unlawful actions and serving as a deterrent to both Interstate Brokers and others from future violations. Accordingly, we propose a forfeiture of $4,500 for each of the 10,000 calls verified by Commission staff, for a total proposed forfeiture of $45,000,000. 79 John M. Burkman, Jacob Alexander Wohl, J.M. Burkman & Assocs. LLC, Notice of Apparently Liability for Forfeiture, FCC 21-97, 2021 WL 3776700, at *1 (Aug. 24, 2021) (Burkman Notice of Apparent Liability) (citing, In the Matter of 1 Home Lending Corp., Notice of Apparently Liability, 21 FCC Rcd 11852 (2006) (proposing a forfeiture of $18,000 for four apparent violations of the TCPA ($4,500 per call)); In the Matter of 1 Home Lending Corp., Forfeiture Order, 24 FCC Rcd 2888 (2009) (imposing proposed forfeiture); In the Matter of Security First of Alabama, Notice of Apparently Liability, 26 FCC Rcd 6490 (2011) (proposing a range of $4500 to $10,000 per unlawful call, depending on the egregiousness, for a total of $342,000 for a total of 43 unlawful calls); In the Matter of Security First of Alabama Forfeiture Order, 30 FCC Rcd 2377 (2015) (imposing proposed forfeiture); Warrior Custom Golf, Inc., Notice of Apparent Liability for Forfeiture, 19 FCC Rcd. 23648, 23652 (2004); Warrior Custom Golf, Inc., Order Adopting Consent Decree, 21 FCC Rcd 6461 (2006) (company paid proposed forfeiture). See also Travel Club Marketing, Inc., Notice of Apparent Liability for Forfeiture, 26 FCC Rcd 15831, 15835-36 (2011), (recognizing that the Commission had historically imposed a $4,500 base forfeiture per violation, and proposing an upward adjustment to impose the statutory maximum of $16,000 per call, for a total forfeiture of $2,960,000); Travel Club Marketing, Inc., Forfeiture Order, 30 FCC Rcd 8861 (2015) (imposing proposed forfeiture). 80 The Burkman matter involved 1,141 apparently unlawful calls. See Burkman Notice of Apparent Liability * 5 para. 14. Prior cases involved fewer than 1,000 calls each. 81 Id. at para. 15. 82 See, e.g., Kenneth Moser dba Marketing Support Systems, Forfeiture Order, 35 FCC Rcd 13415, 13432, para.13 (2020) (Moser Notice of Apparent Liability) (verifying a sample of 5,713 of the 47,610 apparently unlawful calls); Affordable Enterprises of Arizona, LLC, Notice of Apparent Liability for Forfeiture, 33 FCC Rcd 9233, 9242-43, para. 33 (2018) (Affordable Notice of Apparent Liability) (verifying a sample of 37,525 of the 2,341,125 apparently unlawful calls). 83 In this case, the potential forfeiture would be more than $2.3 billion if we proposed to include every apparently unlawful robocall. 84 See TRACED Act, section 3(a). 12 Federal Communications Commission FCC 22-16 B. We Propose to Hold Interstate Brokers, National Health Agents, and Gregory Robbins Jointly and Severally Liable. 35. Interstate Brokers, National Health Agents, and Gregory Robbins are apparently liable for violating the TCPA in an effort to sell health insurance. Courts will pierce the corporate veil when they find that the parties are (1) alter egos or there is a unity of interest and ownership such that “the personalities and assets of the corporation and the individuals are indistinct [,]” and when (2) “adherence to the corporate form would sanction a fraud, promote injustice, or lead to an evasion of legal obligations.”85 Here, the companies apparently share such a unity of interest and ownership, and Mr. Robbins apparently is an alter ego of the companies. Furthermore, he has apparently continued incorporating entities for the purpose of making his illegal robocalls. We propose to pierce the corporate veil to hold Mr. Robbins personally liable for the illegal calls, and to hold Mr. Robbins, Interstate Brokers, National Health Agents, and any successors in interest, jointly and severally liable for the amount of the proposed forfeiture. 1. Interstate Brokers and National Health Agents Apparently Are Alter Egos. 36. Interstate Brokers and National Health Agents appear to share so many operational traits that they comprise a substantial identity and, as such, we propose to hold them jointly and severally liable for the apparent TCPA violations. When analyzing two companies “the factors that enter into a determination of alter ego status are substantial identity of management, business purpose, operation, equipment, customers, supervision and ownership between the old entity and its successor.”86 37. National Health Agents and Interstate Brokers share a manager and a business purpose. Mr. Robbins states, on public websites, that he owns Interstate Brokers and was a managing partner of National Health Agents.87 Florida state records list Mr. Robbins as the owner of National Health Agents.88 They also share resources, including office location, phone number, and message content, to such a degree that the companies are not easily distinguishable. The main phone number for Interstate Brokers also appears on National Health Agents’ website.89 This indicates that the companies likely share customers, or at least market each other’s business. National Health Agents and Interstate Brokers share principal and mailing addresses in Fort Lauderdale, Florida.90 In addition, during March 2020, both 85 N.L.R.B. v. West Dixie Enterprises, Inc., 190 F.3d 1191, 1194 (11th Cir. 1999) (applying the aforementioned test to determine whether an individual was an alter ego of his company and should be held personally liable). 86 Fugazy Continental Corp. v. NLRB, 725 F.2d 1416, 1419 (1984); see also Flynn v. Ohio Bldg. Restoration, Inc., 317 F. Supp. 2d 22, 28 (2004) (“While ‘the alter ego doctrine is primarily applied to situations involving successor companies, where the successor is merely a disguised continuance of the old employer, . . . it also applies to situations where the companies are parallel’ operations.”) (quoting Massachusetts Carpenters Central Collection Agency v. Belmont Concrete, 139 F.3d 304, 307 (1st Cir. 1998)). 87 See Gregory Robbins, LinkedIn, https:// www.linkedin.com/in/ gregory-robbins-8a2414102 Dec. 15, 2021) (listing Robbins as the owner of Interstate Brokers from August 2017 to the present and former managing partner of National Health Agents.) (on file in EB-TCD-18-00030995). 88 See National Health Agents, 2021 Florida Limited Liability Company Annual Report, Florida Department of State Division of Corporations (Mar. 15, 2021) (showing Gregory Robbins as the sole manager.). 89 Google search, www.google.com, (input “{[ ]}”; showing results that include Interstate Brokers’ and National Health Agents’ websites) (Jan. 15, 2022). 90 Compare National Health Agents, 2020 Florida Limited Liability Company Annual Report, Florida Department of State Division of Corporations (Feb. 11, 2020) (showing the principal and mailing address as {[ ]}), with Interstate Brokers of America, 2020 Florida Limited Liability Company Annual Report, Florida Department of State Division of Corporations (Jan. 30, 2020) (showing the principal and mailing address as {[ ]}). 13 Federal Communications Commission FCC 22-16 companies used the same registered agent, Yellow Snooks of Boca.91 Yellow Snooks of Boca listed its address as Mr. Robbins’ residence, which he shares with Michelle Robbins.92 The company appears to have existed only to serve as the registered agent for Interstate Brokers and National Health Agents; we found no evidence that it served other clients. In addition, both companies appear to have the same business purpose; both make health care telemarketing calls. In fact, Interstate Brokers was formed shortly after National Health Agents was sued for illegal robocalling.93 The evidence thus suggests that Interstate Brokers was created to carry on the work of National Health Agents rather than for a distinct business purpose. We therefore find that Interstate Brokers and National Health Agents are, apparently, alter egos for purposes of liability. 2. The Companies are Apparently an Alter Ego of Gregory Robbins. 38. We propose to find Mr. Robbins personally liable for apparently orchestrating the robocalling scheme described in this Notice of Apparent Liability. The Commission may pierce the corporate veil to “prevent reliance on [the] corporate form to frustrate our efforts to implement core statutory provisions.”94 We find that to be the case here. 39. Both federal and Florida courts have explained that courts may pierce the corporate veil and find the corporation’s officers to be alter egos of the corporate entity when there is a unity of ownership and interest.95 “Unity of interest and ownership can . . . be demonstrated by showing 91 Florida law requires companies to designate and continuously maintain a registered agent to forward to the corporation a process, notice, or demand pertaining to the corporation which is served on or received by the registered agent. See FL Statute § 605.0113(1)(b) (“Each limited liability company. . . shall designate and continuously maintain in this state: a registered agent who must be an individual who resides in the state and whose business address is identical to the registered office.”). See FL Statute § 607.0501(4)(a) and (b) “The duties of a registered agent are: [t]o forward to the corporation at the address most recently supplied to the registered agent by the corporation, a process, notice, or demand pertaining to the corporation which is served on or received by the registered agent; and [i]f the registered agent resigns, to provide the notice required under s. 607.0503 to the corporation at the address most recently supplied to the registered agent by the corporation.” 92 Compare National Health Agents, Detail by Entity Name, Florida Department of State Division of Corporations (last visited Nov. 2, 2020) (showing Yellow Snooks of Boca as the registered agent located at {[ ]}), and Interstate Brokers of America, Detail by Entity Name, Florida Department of State Division of Corporations (last visited Nov. 2, 2020) (showing Yellow Snooks of Boca as the registered agent located at {[ ]}), with voterrecords.com (showing that Gregory Robbins and Michelle Robbins live at the Boca Raton address listed as Michelle Robbins’s address on National Health Agents, Interstate Brokers, and Yellow Snooks of Boca corporate filing) (last visited Nov. 2, 2020) https://voterrecords.com/{[ ]} (on file in EB-TCD-18-00030995). 93 See Cain et al v. National Health Agents, LLC, (No. 1:19-cv-10487), (D. Mass. Mar. 14, 2019) (complaint filed Mar. 14, 2019); see also Interstate Brokers of America, Electronic Articles of Organization for Florida Limited Liability Company, Florida Department of State Division of Corporations (May 1, 2019). 94 Telseven, LLC, Patrick Hines, Forfeiture Order, 31 FCC Rcd 1629, 1635 (2016); see also United States Through Small Business Admin. v. Pena, 731 F.2d 8, 12 (D.C. Cir. 1984) (“Where the statutory purpose could be easily frustrated through the use of separate corporate entities a regulatory commission is entitled to look through corporate entities and treat the separate entities as one for purposes of regulation.”) (quoting Capital Tel. Co., Inc. v. FCC, 498 F.2d 734, 738 & n.10 (D.C. Cir. 1974)). 95 Shapiro, Lifschitz & Schram, P.C. v. Hazard, 90 F. Supp. 2d 15, 23 (D.D.C. 2000) (citing Vuitch v. Furr, 482 A.2d 811, 815–16 (D.C.1984)). See also, Lopes v. JetsetDC, LLC, 994 F. Supp. 2d 135, 147 (D.D.C. 2014) (citing Labadie Coal Co. v. Black, 672 F.2d 92, 97 (D.C.Cir.1982) (finding it appropriate to pierce the veil when “the corporation, rather than being a distinct, responsible entity, is in fact the alter ego or business conduit of the person in control.”); Shapiro, Lifschitz & Schram, P.C. v. R.E. Hazard, Jr. Ltd. P'ship, 90 F.Supp.2d 15, 22 (D.D.C.2000)). See also Dania Jai-Alai Palace, Inc. v. Sykes, 450 So. 2d 1114, 1120-21 (Fla. 1984) (a [company] will be considered an alter-ego if it is proven to be a “mere instrumentality” and was formed or used to achieve an “improper purpose.”); Aldana v. Fresh Del Monte Produce Co., 2007 U.S. Dist. LEXIS 99525 *17; 2007 WL 7143959. 14 Federal Communications Commission FCC 22-16 domination and control of a corporation.”96 A court may consider the following factors: “1) the nature of the corporate ownership and control; 2) failure to maintain corporate minutes; 3) substantial disregard of the formalities of the corporate form; 4) commingling of funds and other assets of the corporation; 5) diversion of the corporation's funds and other assets to noncorporate uses such as the personal use of the corporation’s [sic] shareholders; and 6) use of the same office or business location by the corporation and its individual shareholders.”97 We find that evidence of a sufficient number of these factors warrant holding Mr. Robbins personally liable. 40. Corporate ownership and control. Mr. Robbins publicly represents on social media, in corporate filings, and in civil proceedings, that he owns, controls, and manages Interstate Brokers and National Health Agents.98 Mr. Robbins publicly states on social media that he is the owner of Interstate Brokers and a former “managing partner” of National Health Agents.99 He also registered Interstate Brokers in California.100 In a 2019 TCPA case against National Health Agents, LLC, Mr. Robbins described himself as National Health Agents’ supervisor or “master agent”, stating that he pays commissions to independent agents for making sales.101 He has incorporated National Health Agents in 96 Shapiro, Lifschitz & Schram, P.C. v. Hazard, 90 F. Supp. 2d 15, 23 (D.D.C. 2000) (citing Vuitch v. Furr, 482 A.2d 811, 815–16 (D.C.1984)). 97 Shapiro, Lifschitz & Schram, P.C. v. Hazard, 90 F. Supp. 2d 15, 23 (D.D.C. 2000) (citing Labadie Coal Co. v. Black, 672 F.2d 92, 97 (1982). See also Lopes v. JetsetDC, LLC, 994 F. Supp. 2d 135, 147 (D.D.C. 2014) (citing Ruffin v. New Destination, LLC, 773 F.Supp.2d 34, 41 (D.D.C.2011)) (“Under the District's veil-piercing test, courts generally inquire as to ‘whether corporate formalities have been observed; whether there has been commingling of corporate and shareholder funds, staff and property; whether a single shareholder dominates the corporation; whether the corporation is adequately capitalized; and, especially, whether the corporate form has been used to effectuate a fraud.”). 98 Interstate Brokers of America, LinkedIn, https://www.linkedin.com/company/interstate-brokers-of-america (Oct 14, 2021) (showing that the company has 11-50 employees) (on file in EB-TCD-18-00030995). National Health Agents appears not to have a LinkedIn page unlike Interstate Brokers of America. However, a Google search for “National Health Agents” returns several profiles of apparent employees. See Google search, www.google.com, (input “National Health Agents” and “LinkedIn”; showing several individuals’ profiles listing employment with National Health Agents). 99 See Gregory Robbins, LinkedIn, https:// www.linkedin.com/in/ gregory-robbins-8a2414102 (Oct. 14, 2020) (on file in EB-TCD-18-00030995). 100 See Application to Register a Foreign Limited Liability Company (LLC), California Secretary of State (Jun. 10, 2020) (Including Interstate Brokers of America’s Florida certificate of good standing and Robbins’s signature certifying that he had authorization to sign on behalf of the foreign LLC). 101 Declaration of Gregory Robbins (dated Oct. 16, 2020), Cain et al v. National Health Agents, LLC, (No. 1:19-cv- 10487), (D. Mass. Mar. 14, 2019). 15 Federal Communications Commission FCC 22-16 at least two states with the same officers,102 and is currently its sole manager and member in Florida.103 We reviewed Florida and West Virginia records and determined that Mr. Robbins was the only one of the incorporating officers that was licensed to sell insurance, evidencing (1) how important he was to the company’s sales operations, and (2) his influence over how and where National Health Agents attempts to sell insurance.104 Mr. Robbins’ involvement in the companies supports a finding that there is a unity of interests among them. 41. Failure to maintain corporate formalities. Mr. Robbins apparently substantially disregarded the formalities of corporate form. Courts have said that “[f]aithfulness to these formalities is the price paid for the corporate fiction, a relatively small price to pay for limited liability. Furthermore, the formalities are themselves an excellent litmus test of the extent to which the individuals involved actually view the corporation as a separate being.”105 42. Mr. Robbins failed to maintain corporate formalities in part because he used a non- compliant company as the registered agent. During the relevant period, National Health Agents’ and Interstate Brokers of America’s registered agent was Yellow Snooks of Boca. 106 In 2020, Yellow Snooks 102 See National Health Agents, Electronic Articles of Organization for Limited Liability Company, Florida Department of State Division of Corporations, (Oct. 3, 2017). National Health Agents was organized on Oct. 3, 2017 by Robbins and two others. The managers were Petlarr Financial Inc., DB85 Inc., African Steel Inc., American Document Preparation Corp., and DKM Consulting LLC. Petlarr Financial Inc. which was owned by Andrew Petrozzo at the time. DB85 is not a registered entity, and no entity named “African Steel” was active at the time of National Health Agents’ organization. American Document Corp was Gregory Robbins’ company, and DKM Consulting was owned by Daniel Heimbender. See Petlarr Financial Inc., Company Annual Report, Florida Department of State Division of Corporations (Apr. 26, 2017) (listing Andrew Petrozzo as the registered agent and officer/director); Search results for “DB85”, Florida Department of State Division of Corporations, http://search.sunbiz.org/Inquiry/CorporationSearch/ByName (input “db85”; list of registered entities does not show db85); search results for “African Steel”, Florida Department of State Division of Corporations, http://search.sunbiz.org/Inquiry/CorporationSearch/ByName (input “African Steel”; list of registered entities shows “African Steel” which was dissolved in 2014 and “African Steel Enterprises” that was dissolved on Sept. 22, 2017); DKM Consulting, Company Annual Report, Florida Department of State Division of Corporations (Sept. 26, 2017) (listing Daniel Heimbender as the registered agent and manager); American Document Preparation Corp., Detail by Entity Name, Florida Department of State Division of Corporations (filed Feb. 16, 2016) (listing Gregory Robbins as the registered agent and co-director with Michelle Robbins). See also National Health Agents, Business Organization Detail, West Virginia Secretary of State (Jan. 29, 2019) (listing Gregory Robbins, Daniel Heimbender, and Andrew Petrozzo as the only officers located at the same address in Florida). 103 See National Health Agents, Articles of Amendment to Articles of Organization, Florida Department of State Division of Corporations (Aug. 28, 2019) (Robbins signed as the “sole manager and member” of the company). 104 See West Virginia licensee search results for National Health Agents, National Association of Insurance Commissioners (showing Robbins as the designated responsible licensed producer). Compare West Virginia licensee search results for Gregory Robbins, National Association of Insurance Commissioners, https://sbs naic.org/solar-external-lookup/ (input jurisdiction and entity type; then input first and last name; accept terms and conditions; click on Gregory Steven Robbins), with West Virginia licensee search results for Andrew Petrozzo and Daniel Heimbender, National Association of Insurance Commissioners, https://sbs naic.org/solar-external-lookup/ (input jurisdiction and entity type; then input first and last name; accept terms and conditions; a blue box pops up on the right saying “info no results found.”); compare Florida licensee search results for Gregory Robbins, Licensee Search – Florida Department of Financial Services, https://licenseesearch fldfs.com/, (input first and last name; click on Gregory Steven Robbins), with Florida licensee search results for Andrew Petrozzo and Daniel Heimbender, Licensee Search - Florida Department of Financial Services, https://licenseesearch fldfs.com/ (input first and last name; a blue bar pops up at the bottom saying “no licensee found.”). 105 Labadie Coal Co. v. Black, 672 F.2d 92, 97 (D.C. Cir. 1982). 106 See National Health Agents, 2020 Florida Limited Liability Annual Report, Florida Department of State Division of Corporations (Feb. 11, 2020) (showing Yellow Snooks of Boca as the registered agent); see also Interstate (continued….) 16 Federal Communications Commission FCC 22-16 of Boca failed to file an annual report with the Florida Department of State Division of Corporations.107 The state dissolved Yellow Snooks of Boca in September 2020 for failure to file its annual report.108 Neither company named a new registered agent until March 2021, when Mr. Robbins became the registered agent of National Health Agents.109 Interstate Brokers continues to identify Yellow Snooks of Boca as its registered agent.110 43. Use of the same office or business location by the corporations and their shareholders. Mr. Robbins did not consistently maintain a distinction between his professional and personal locations. Courts have found that shared employees and office space can demonstrate that an individual was an alter ego of a company.111 In March 2020, both National Health Agents and Interstate Brokers of America were linked through their registered agent which was located at Mr. Robbins’ residential address. Failure to maintain records and maintain a separation between this personal and professional dealings supports a finding in favor of piercing the corporate veil and holding Mr. Robbins personally liable. 3. Piercing the Corporate Veil Serves Important Policy Goals. 44. Piercing the corporate veil is necessary to hold Mr. Robbins and his businesses accountable for his apparently unlawful robocalling activities. Mr. Robbins has demonstrated that he can and will quickly form a new business entity when an existing entity is sued; he has done so at least twice before. After National Health Agents was sued for TCPA violations,112 Mr. Robbins quickly incorporated Interstate Brokers.113 When Interstate Brokers was sued in October 2020,114 Mr. Robbins soon formed a new company, Century Health and Life, which sells health insurance on a website that is similar to Brokers of America, 2020 Florida Limited Liability Annual Report, Florida Department of State Division of Corporations (Jan. 30, 2020) (showing Yellow Snooks of Boca as the registered agent). See also Yellow Snooks of Boca LLC, Articles of Organization for Limited Liability Company, Florida Department of State Division of Corporations (Aug. 30, 2018) (showing Michelle Robbins as the manager). 107 See Yellow Snooks of Boca LLC, Articles of Organization for Limited Liability Company, Florida Department of State Division of Corporations (Aug. 30, 2018) (requesting an electronic signature acknowledging “the requirement to file an annual report between January 1st and May 1st in the calendar year following formation of the LLC and every year thereafter to maintain ‘active’ status.”). 108 See Yellow Snooks of Boca, Detail by Entity Name, Florida Department of State Division of Corporations (last visited Dec. 9, 2021) (showing the last event as administrative dissolution for failure to file an annual report). 109 See National Health Agents LLC, 2021 Florida Limited Liability Company Annual Report, Florida Department of State (Mar. 15, 2021) (showing the name and address of current registered agent as Gregory Robbins in Boca Raton, FL). 110 See Interstate Brokers of America, Detail by Entity Name, Florida Department of State Division of Corporations (last visited Nov. 2, 2020) (showing Yellow Snooks of Boca as the registered agent located at {[ ]}). 111 See Labadie Coal Co. v. Black, 672 F.2d 92, 99, 1982 U.S. App. LEXIS 21824, *23, 217 U.S. App. D.C. 239, 33 Fed. R. Serv. 2d (Callaghan) 947 (“[Use of the same office space or business location] is another factor which we believe bears on the whole picture of the precise relationship between [the corporation and individual shareholders].”). See also Shapiro, Lifschitz & Schram, P.C. v. Hazard, 90 F. Supp. 2d 15, 26 (D.D.C. 2000) (Finding that companies “shared at least one of their employees” to be probative). 112 See Cain et al v. National Health Agents, LLC, (No. 1:19-cv-10487), (D. Mass. Mar. 14, 2019). 113 See Interstate Brokers of America, Electronic Articles of Organization for Florida Limited Liability Company Florida Department of State Division of Corporations (May 6, 2019). 114 See Parks v. Interstate Brokers of America, LLC, (No. 1:20-cv-11885) (D. Mass. Oct. 20, 2020) (“This case involves a campaign by Interstate Brokers of America LLC . . . to market insurance using prerecorded telemarketing calls in violation of the TCPA.”), settled on Dec. 16, 2020. 17 Federal Communications Commission FCC 22-16 Interstate Brokers’.115 This successive formation of companies indicates that taking action against the companies alone would not prevent Mr. Robbins from creating new companies and using the corporate form as a shield to escape enforcement. In Dania Jai-Alai Palace, Inc. v. Skyes, the Florida Supreme Court explained that “courts will look through the screen of corporate entity to the individuals who compose it in cases in which the corporation was a mere device or sham to accomplish some ulterior purpose, or is a mere instrumentality or agent of another corporation or individual . . . or where the purpose is to evade some statute or to accomplish some fraud or illegal purpose.”116 We find that piercing the corporate veil and holding Mr. Robbins personally liable is necessary to prevent him from using the companies’ limited liability as a shield from accountability for making apparently illegal robocalls. 45. For the above reasons, we propose to pierce the corporate veil and hold Gregory Robbins personally liable, and we propose to treat National Health Agents and Interstate Brokers of America as alter egos. Furthermore, we proposed to hold Interstate Brokers of America LLC, National Health Agents LLC, and Gregory Robbins jointly and severally liable for the entire $45,000,000 proposed forfeiture. V. ORDERING CLAUSES 46. Accordingly, IT IS ORDERED that, pursuant to section 503(b) of the Act117 and section 1.80 of the Commission’s rules,118 Gregory Robbins, Interstate Brokers of America LLC and National Health Agents LLC, are hereby NOTIFIED of this APPARENT JOINT AND SEVERAL LIABILITY FOR A FORFEITURE in the amount of forty five million dollars ($45,000,000) for willful and repeated violations of section 227(b) of the Act119 and section 64.1200(a) of the Commission’s rules.120 47. IT IS FURTHER ORDERED that, pursuant to section 1.80 of the Commission’s rules,121 within thirty (30) calendar days of the release date of this Notice of Apparent Liability for Forfeiture, Interstate Brokers of America LLC, National Health Agents, LLC, Gregory Robbins SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture consistent with paragraph 49 below. 48. Gregory Robbins, , Interstate Brokers of America LLC, and National Health Agents LLC shall send electronic notification of payment to Lisa Williford at Lisa.Williford@fcc.gov on the date said 115 See Gregory Robbins, LinkedIn, https:// www.linkedin.com/in/ gregory-robbins-8a2414102 (last visited Dec. 15, 2021) (on file in EB-TCD-18-00030995); see also Century Health and Life LLC, Articles of Organization, Florida Department of State Division of Corporations (Dec. 28, 2020); Century Health and Life LLC, Business Details, Indiana Secretary of State (last visited Dec. 8, 2021) https://bsd.sos.in.gov/PublicBusinessSearch/BusinessInformationFromIndex (showing Gregory Robbins in Boca Raton FL as a member and the “governing person”); Century Health and Life LLC, Business Details, Mississippi Secretary of State (last visited Dec. 8, 2021) https://corp.sos ms.gov/corp/portal/c/page/corpbusinessidsearch/portal.aspx# (listing Gregory Robbins, member, under “officers and directors”); Century Health and Life LLC, Organization Details, Utah Insurance Department https://secure.utah.gov/agent-search/organizationDetails.html?agent=boKV9z4Vpd (last visited Dec. 8, 2021) (showing Gregory Robbins located in Boca Raton, FL as the company’s licensed agent since Feb. 4, 2021); see also Century Health and Life, home page, https://centuryagents.com/ (last visited Dec. 8, 2021). Notably, Century Health and Life’s website says that is has been in business for more than 20 years, notwithstanding its recent incorporation. See Century Health and Life, Articles of Organization of Century Health and Life, Florida Department of State Division of Corporations (Dec. 28, 2020). This lends support to our determinations that (1) Mr. Robbins treats his companies interchangeably, and (2) the new company is a continuation of Interstate Brokers and National Health Agents, rather than an entirely new operation. 117 47 U.S.C. § 503(b). 118 47 CFR § 1.80. 119 47 U.S.C. § 227(b). 120 47 CFR § 64.1200(a). 121 47 CFR § 1.80(g). 18 Federal Communications Commission FCC 22-16 payment is made. Payment of the forfeiture must be made by credit card, ACH (Automated Clearing House) debit from a bank account, or by wire transfer using the Commission’s Registration System (the Commission’s FRN Management and Financial system).122 The Commission no longer accepts Civil Penalty payments by check or money order. Below are instructions that payors should follow based on the form of payment selected:123 x Payment by wire transfer must be made to ABA Number 021030004, receiving bank TREAS/NYC, and Account Number 27000001. A completed Form 159 must be faxed to the Federal Communications Commission at 202-418-2843 or e-mailed to RROGWireFaxes@fcc.gov on the same business day the wire transfer is initiated.124 Failure to provide all required information in Form 159 may result in payment not being recognized as having been received. When completing FCC Form 159, enter the Account Number in block number 23A (call sign/other ID), enter the letters “FORF” in block number 24A (payment type code), and enter in block number 11 the FRN(s) captioned above (Payor FRN).125 For additional detail and wire transfer instructions, go to https://www.fcc.gov/licensing-databases/fees/wire- transfer. x Payment by credit card must be made by using the Commission’s Registration System (CORES) at https://apps.fcc.gov/cores/userLogin.do. To pay by credit card, log-in using the FCC Username associated to the FRN captioned above. If payment must be split across FRNs, complete this process for each FRN. Next, select “Manage Existing FRNs | FRN Financial | Bills & Fees” from the CORES Menu, then select FRN Financial and the view/make payments option next to the FRN. Select the “Open Bills” tab and find the bill number associated with the CD Acct. No. The bill number is the CD Acct. No. with the first two digits excluded (e.g., CD 1912345678 would be associated with FCC Bill Number 12345678). After selecting the bill for payment, choose the “Pay by Credit Card” option. Please note that there is a $24,999.99 limit on credit card transactions. x Payment by ACH must be made by using the Commission’s Registration System (CORES) at https://apps.fcc.gov/cores/paymentFrnLogin.do. To pay by ACH, log in using the FCC Username associated to the FRN captioned above. If payment must be split across FRNs, complete this process for each FRN. Next, select “Manage Existing FRNs | FRN Financial | Bills & Fees” on the CORES Menu, then select FRN Financial and the view/make payments option next to the FRN. Select the “Open Bills” tab and find the bill number associated with the CD Acct. No. The bill number is the CD Acct. No. with the first two digits excluded (e.g., CD 1912345678 would be associated with FCC Bill Number 12345678). Finally, choose the “Pay from Bank Account” option. Please contact the appropriate financial institution to confirm the correct Routing Number and the correct account number from which payment will be made and verify with that financial institution that the designated account has authorization to accept ACH transactions. 49. Any request for making full payment over time under an installment plan should be sent to: Chief Financial Officer—Financial Operations, Federal Communications Commission, 45 L Street, NE, Washington, DC 20554.126 Questions regarding payment procedures should be directed to the 122 Payments made using CORES do not require the submission of an FCC Form 159. 123 For questions regarding payment procedures, please contact the Financial Operations Group Help Desk by phone at 1-877-480-3201 (option #6), or by e-mail at ARINQUIRIES@fcc.gov. 124 FCC Form 159 is accessible at https://www fcc.gov/licensing-databases/fees/fcc-remittance-advice-form-159. 125 Instructions for completing the form may be obtained at http://www.fcc.gov/Forms/Form159/159.pdf. 126 See 47 CFR § 1.1914. 19 Federal Communications Commission FCC 22-16 STATEMENT OF CHAIRWOMAN JESSICA ROSENWORCEL Re: In the Matter of Gregory Robbins, Interstate Brokers of America LLC, and National Health Agents LLC, Notice of Apparent Liability for Forfeiture, File No. EB-TCD-18-00030995 Robocalls are annoying in a big way. They merit a response in a big way, too. We do that here by holding to account a company that made more than half a million robocalls to people they had no right to call. The company was doing a hard sell, offering health insurance, and trying to take advantage of COVID-19 anxiety anytime anyone answered the phone. So we respond today with a 45 million dollar fine for these junk calls because they violate our rules and the Telephone Consumer Protection Act. This is the largest fine ever proposed by this agency under this law. But our robocall efforts are bigger than this record fine today. We have required new call authentication technology on our networks. We have set up the first-ever robocall mitigation database, a registry of every voice provider that is a public record of their anti-robocall practices. And just yesterday we announced new partnerships. We now have 16 State Attorneys General that have signed our Memorandum of Understanding, committing to share information and resources with us so we can work together to get these junk calls off the line. I want to thank specifically the State Attorneys General of Colorado and Vermont for joining this effort and the State Attorneys General of Colorado, North Carolina, and Tennessee for their new initiative to get other State Attorneys General on board. I also think for this agency to be truly effective when it comes to stopping robocalls more authority is needed. For starters, the decision last year by the Supreme Court in Facebook v. Duguid narrowed the definition of autodialer under the Telephone Consumer Protection Act, which could lead to less consumer protection from these annoying calls. We need to fix that. We also need more tools to catch those behind these calls, including the ability to seize assets to stop them in their tracks and even the authority to enable the Federal Communications Commission to go to court directly and collect against these bad actors—each and every one of them. Thank you to the agency staff who worked on these efforts, including Loyaan Egal, Lisa Gelb, Rosemary Harold, Jessica Manuel, Raul Rojo, Daniel Stepanicich, Kristi Thompson, Ashley Tyson, and Lisa Zaina from the Enforcement Bureau; Valerie Hill, Richard Mallen, Wisam Naoum, and William Richardson from the Office of General Counsel; Aaron Garza, Richard Smith, Mark Stone, Kristi Thornton, and Kimberly Wild from the Consumer and Governmental Affairs Bureau; Pam Arluk, Matt Collins, and Kris Monteith from the Wireline Competition Bureau; and Susan Lee and Virginia Metallo from the Office of Economics and Analytics. 21 Federal Communications Commission FCC 22-16 STATEMENT OF COMMISSIONER GEOFFREY STARKS Re: In the Matter of Gregory Robbins, Interstate Brokers of America LLC, and National Health Agents LLC, Notice of Apparent Liability for Forfeiture, File No. EB-TCD-18-00030995 There are numerous and ongoing efforts to stem the tide of unwanted and illegal robocalls, yet Americans continue to receive billions of unsolicited robocalls each year. Many of them come from telemarketers or lead generators like Mr. Robbins who place robocalls to phone numbers they purchase or to phone numbers secured from unsuspecting consumers, in this case those seeking information about health care insurance. Here, Mr. Robbins allegedly placed more than half a million robocalls in one month to consumers without getting their express consent, including almost 250,000 calls to numbers on the National Do Not Call Registry, thereby ignoring the rights of consumers not to be bothered by unwanted prerecorded calls under the Telephone Consumer Protection Act. Given the large number of verified calls found to have been placed without express consent, I support the significant forfeiture penalty proposed herein. Thanks to the Industry Traceback Group for alerting us to this illegal robocalling campaign, and I appreciate the hard work of the Enforcement Bureau staff in investigating and uncovering the extent of the harms caused to consumers by these alleged violations. I approve. 22