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Case 9:21-cv-00110-DLC-KLD Document 1 Filed 09/27/21 Page 1 of 18
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`UNITED STATES DISTRICT COURT
`DISTRICT OF MONTANA
`MISSOULA DIVISION
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`Plaintiff,
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`v.
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`UNITED STATES OF AMERICA,
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`SCOTT RHODES,
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`Defendant.
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`Case No. ____________
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`COMPLAINT FOR
`RECOVERY OF CIVIL
`MONETARY FORFEITURE
`AND INJUNCTIVE RELIEF
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`Plaintiff, the United States of America, by and through the undersigned
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`attorneys, acting upon request to the Attorney General by the Federal
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`Communications Commission (the “FCC” or “Commission”) pursuant to 47
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`U.S.C. §§ 401(a) and 504(a), hereby alleges as follows:
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`1.
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`This action is brought by the United States against Defendant Scott
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`Rhodes (“Defendant” or “Rhodes”), in response to Defendant’s repeated violation
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`of the Truth in Caller ID Act, 47 U.S.C. § 227(e)(1). Defendant has made
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`thousands of telephone calls in which he has unlawfully falsified, or “spoofed” his
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`caller identification information “with the intent to defraud, cause harm, or
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`wrongfully obtain anything of value.” § 227(e)(1).
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`2.
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`On January 14, 2021, the FCC issued a Forfeiture Order in the amount
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`of $9,918,000 against Defendant for 4,959 violations of 47 U.S.C. § 227(e)(1) and
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`47 C.F.R. § 64.1604 (the “Forfeiture Order”). Pursuant to 47 U.S.C. § 504(a), the
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`United States seeks to enforce the Forfeiture Order.
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`3.
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`Pursuant to 47 U.S.C. § 401(a), the United States seeks injunctive
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`relief in the form of a writ of mandamus commanding Defendant to comply with
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`the Truth in Caller ID Act.
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`JURISDICTION AND VENUE
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`4.
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`This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§
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`1331, 1345, and 1355, as well as 47 U.S.C. §§ 401(a) and 504(a).
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`5.
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`Venue is proper in this District pursuant to 28 U.S.C. §§ 1355(b),
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`1391(b), and 1395(a), as well as 47 U.S.C. § 504(a), because Defendant resides
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`within this District.
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`THE PARTIES
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`Plaintiff is the United States of America.
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`Defendant Scott Rhodes is a resident of Libby, Montana, which is
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`6.
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`7.
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`located in this District.
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`STATUTORY AND REGULATORY BACKGROUND
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`8.
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`The FCC is an independent federal regulatory agency created by
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`Congress to regulate intrastate, interstate, and foreign wire and radio
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`communications pursuant to the Communications Act of 1934, as amended (the
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`“Communications Act” or the “Act”), 47 U.S.C. §§ 151 et seq.
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`9.
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`The Truth in Caller ID Act, 47 U.S.C. § 227(e)(1), makes it unlawful
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`to “cause any caller identification service” in connection with any
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`telecommunications service or IP-enabled voice service “to knowingly transmit
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`misleading or inaccurate caller identification information with the intent to
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`defraud, cause harm, or wrongfully obtain anything of value.” 47 U.S.C. §
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`227(e)(1). The practice of knowingly transmitting misleading or inaccurate caller
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`identification (“caller ID”) information referenced by the statutory provision is
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`commonly referred to as “spoofing.” Section 64.1604 of the FCC’s rules
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`implements the prohibition on unlawful spoofing. See 47 C.F.R § 64.1604.
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`10. The Act and operative rules authorize the Commission to impose a
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`forfeiture of up to $11,766 for each spoofing violation. See 47 U.S.C. §
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`227(e)(5)(A); 47 C.F.R. § 1.80(b)(4); Annual Adjustment of Civil Monetary
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`Penalties To Reflect Inflation, 85 Fed. Reg. 2318-01 (Jan. 15, 2020).
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`11. Pursuant to 47 U.S.C. § 503(b)(4), the FCC may impose a forfeiture
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`penalty on a person for spoofing violations upon a finding that such violations
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`occurred, if before doing so:
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`a. the Commission issues a “notice of apparent liability,” in writing, with
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`respect to such person;
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`b. such notice has been received by such person, or the Commission has
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`sent such notice to the last known address of such person, by
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`registered or certified mail; and
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`c. such person is granted an opportunity to show, in writing why no such
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`forfeiture penalty should be imposed.
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`12.
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`In determining the amount of a forfeiture penalty, the Act requires that
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`the FCC “take into account the nature, circumstances, extent, and gravity of the
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`violation and, with respect to the violator, the degree of culpability, any history of
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`prior offenses, ability to pay, and such other matters as justice may require.” 47
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`U.S.C. § 503(b)(2)(E).
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`13. The FCC’s forfeiture penalties are “payable into the Treasury of the
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`United States” and are “recoverable . . . in a civil suit in the name of the United
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`States[.]” 47 U.S.C. § 504(a).
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`14.
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`In addition to authorizing the imposition of a forfeiture penalty for
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`past violations, the Act also empowers the United States to take action to prevent
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`prospective violations.
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`15.
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`47 U.S.C. § 401(a) authorizes “the Attorney General of the United
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`States at the request of the Commission” to seek a “writ or writs of mandamus
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`commanding” a person who has violated any part of the Act “to comply with the
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`provisions of [the Act].” The term “writ or writs of mandamus” in § 401(a) has
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`regularly “been interpreted to include injunctions against persons alleged to be
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`violating the Act.” United States v. Girona, Civ. No. AWT-99-1262, 2000 WL
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`565496, at *2–3 (D. Conn. Mar. 27, 2000).
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`FACTUAL BACKGROUND
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`16. Defendant has a long history of making telephone calls with the
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`intention of upsetting the calls’ recipients and invading their privacy with
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`unwanted and outrageous messages. These calls often involve the use of an
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`automatic telephone dialing system or an artificial or prerecorded voice—a
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`practice known as “robocalling.”
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`The Truth In Caller ID Act Violations Charged by FCC
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`17.
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`In 2018, Defendant engaged in five separate robocall campaigns in
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`which he used a dialing platform’s service to “transmit misleading or inaccurate
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`caller identification information” on thousands of discrete occasions. § 227(e)(1).
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`Defendant caused the dialing platform to display to recipients caller ID numbers
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`that were not assigned to Defendant.
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`18.
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`In many of the robocalls, Defendant selected caller IDs that matched
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`the locality of the recipient. For example, when calling individuals with phone
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`numbers starting with the digits “641-522” Defendant selected the false caller ID
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`“641-522-1488.” This practice is known as “neighborhood spoofing.”
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`19. The robocalls did not include disclosures regarding “the identity of the
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`business, individual, or other entity initiating the call” and “the telephone number
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`or address of such business, other entity, or individual” required of all “artificial or
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`prerecorded telephone messages” by 47 U.S.C. § 227(d)(3)(A) and 47 C.F.R §
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`64.1200(b). The robocalls did generally end with the message “paid for by
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`theroadtopower.com”—a reference to a website on which Defendant posts a video
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`podcast.
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`20. Brooklyn, Iowa Campaign: The first of the five spoofed robocall
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`campaigns targeted Brooklyn, Iowa, a small town with a population of
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`approximately 1,500. In August 2018, Brooklyn became the focus of national
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`media attention following the abduction and murder of resident Mollie Tibbetts by
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`a Mexican immigrant. In his August 26, 2018 eulogy for his daughter, Tibbett’s
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`father made statements in support of the local Hispanic community.
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`21. From August 28 to 30, 2018, Defendant bombarded Brooklyn with
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`837 spoofed robocalls, using a false caller ID matching the area code and central
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`office code for Brooklyn. The robocalls’ voice message stated that Mollie Tibbetts
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`had been murdered by a “biological hybrid of white and savage Aztec ancestors”;
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`that if Tibbetts were alive she would tell supporters to “kill them all”; and that in
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`lieu of mass murder, all such non-white Hispanic individuals should be expelled
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`from the United States. The voice message specifically charged “relatives of
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`Mollie Tibbetts” with falsely denying her desire to kill all “Aztec hybrids.”
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`22. Predictably given Brooklyn’s small population, family members of
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`Tibbetts received and listened to the spoofed robocalls.
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`23. On information and belief, Defendant intended the spoofed robocalls
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`to cause emotional harm to all recipients, who—believing they were receiving a
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`call from a neighbor—instead received a highly disturbing robocall message that
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`lacked statutorily required disclosures. Defendant intended to cause the most
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`emotional harm to Tibbetts’ grieving family and to their Hispanic neighbors.
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`Defendant’s use of spoofed caller IDs was also intended to enable Defendant to
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`evade law enforcement scrutiny, while still raising the profile of his website.
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`24. Sandpoint, Idaho Campaign: The second spoofed robocall campaign
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`targeted Sandpoint, Idaho, where Defendant was then staying. The campaign
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`followed reporting by the Sandpoint Reader, a local newspaper, which brought
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`undesired attention to Defendant’s activities.
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`25.
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` Between September 21 and 24, 2018, Defendant made 750 spoofed
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`robocalls to Sandpoint telephone numbers, using a false caller ID that made it
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`appear that the robocalls originated from a caller with a Sandpoint phone number.
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`The robocalls’ voice messages described Ben Olson, the publisher of the Sandpoint
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`Reader, as a “cancer [that] must be burned out” and a “degenerate bartender with
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`no education or training in reporting.” They further exhorted listeners to “burn out
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`the cancer.”
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`26. On information and belief, Defendant intended the spoofed robocalls
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`to cause emotional harm to all recipients, who—believing they were receiving a
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`call from a neighbor—instead received a highly disturbing robocall message that
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`lacked statutorily required disclosures. Defendant intended to cause particular
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`harm to Olson, the Sandpoint Reader’s employees, and readers of the paper. On
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`information and belief, Defendant also intended to cause financial and physical
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`harm to Olson and the Sandpoint Reader. Defendant’s use of spoofed caller IDs
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`was also intended to enable Defendant to evade law enforcement scrutiny, while
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`still raising the profile of his website.
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`27. Florida Campaign: The third spoofed robocall campaign targeted the
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`State of Florida during the lead up to Florida’s 2018 gubernatorial election.
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`Between October 20 and 23, 2018, Defendant made 766 spoofed robocalls to
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`Florida telephone numbers, using a false caller ID that made it appear that the
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`robocalls originated from a Florida caller. The robocalls’ voice messages involved
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`an individual claiming to be Andrew Gillum and using a caricatured accent making
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`outlandish claims regarding his intentions to, e.g., replace Florida’s housing stock
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`with mud huts and replace the “white man’s medicine” with “the medicine of my
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`African race,” such as “puttin’ the chicken feets under your pillow.”
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`28. On information and belief, Defendant intended the spoofed robocalls
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`to cause emotional harm to all recipients, who—believing they were receiving a
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`call from a neighbor—instead received a highly disturbing robocall message that
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`lacked statutorily required disclosures. Defendant intended to cause particular
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`emotional harm to Black recipients. Defendant’s use of spoofed caller IDs was also
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`intended to enable Defendant to evade law enforcement scrutiny, while still raising
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`the profile of his website.
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`29. Georgia Campaign: The fourth spoofed robocall campaign targeted
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`the State of Georgia during the lead up to Georgia’s 2018 gubernatorial election.
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`Between November 2 and 3, 2018, Defendant made 583 spoofed robocalls to
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`Georgia telephone numbers, using a false caller ID that made it appear that the
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`robocalls originated from a Georgia caller. The robocalls’ voice messages involved
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`an individual claiming to be “the magical negro, Oprah Winfrey” making various
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`outlandish statements regarding gubernatorial candidate Stacey Abrams, including
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`referring to her as a “poor man’s Aunt Jemima,” whom “white women can be
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`tricked into voting for, especially the fat ones.”
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`30. On information and belief, Defendant intended the spoofed robocalls
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`to cause emotional harm to all recipients, who—believing they were receiving a
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`call from a neighbor—instead received a highly disturbing robocall message that
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`lacked statutorily required disclosures. Defendant intended to cause particular
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`emotional harm to Black recipients. Defendant’s use of spoofed caller IDs was also
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`intended to enable Defendant to evade law enforcement scrutiny, while still raising
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`the profile of his website.
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`31. Charlottesville, Virginia Campaign: The fifth spoofed robocall
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`campaign targeted the town of Charlottesville, Virginia. In May 2017, members of
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`various extremist groups held the “Unite the Right” rally in Charlottesville. During
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`the event, an attendee named James Fields drove his car into a crowd of counter-
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`protestors, injuring several and causing the death of Heather Heyer. Fields was
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`charged with murder for Heyer’s death, and his trial was scheduled for November
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`2018. Jury selection began on November 26.
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`32. Starting November 27, 2018, Defendant bombarded the
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`Charlottesville area with 2,023 spoofed robocalls. Defendant used two false caller
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`IDs matching the area code and central office code for Charlottesville, which were
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`assigned to the University of Virginia and Wells Fargo & Company. The robocalls’
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`voice message blamed Charlottesville’s “Jew Mayor” and “pet Negro Police
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`Chief” for creating mayhem during the “Unite the Right Rally”; stated that the
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`“unhealthy, morbidly obese” Heyer was never struck by a car and instead died of a
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`heart attack; called for the conviction and punishment of the mayor and police
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`chief; and stated “we’re no longer going to tolerate a Jewish lying press, and Jew
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`corruption of an American legal system.”
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`33. On information and belief, Defendant intended the spoofed robocalls
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`to cause emotional harm to all recipients, who—believing they were receiving a
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`call from a neighbor—instead received a highly disturbing robocall message that
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`lacked statutorily required disclosures. Defendant intended to cause particular
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`emotional harm to recipients with relationships with Heather Heyer, as well as to
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`Jewish and Black recipients. Defendant also intended to cause harm to the
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`Commonwealth of Virginia and City of Charlottesville by contaminating the jury
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`pool for the Fields trial. He further intended to cause harm to the University of
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`Virginia and Wells Fargo & Company by causing recipients of spoofed robocalls
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`to falsely believe that Defendant’s messages originated from individuals associated
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`with those institutions. Defendant’s use of spoofed caller IDs was also intended to
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`enable Defendant to evade law enforcement scrutiny, while still raising the profile
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`of his website.
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`34. On information and belief, based on news reports and other evidence,
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`Defendant made additional spoofed robocalls following the Charlottesville
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`campaign. The subsequent spoofed robocalls were also intended to cause harm to
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`their recipients and to enable Defendant to evade law enforcement scrutiny, while
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`raising the profile of his website.
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`FCC’s Notice of Apparent Liability and Forfeiture Order
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`35. On January 31, 2020, the FCC issued a Notice of Apparent Liability
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`for Forfeiture (“NAL”) to Defendant for a monetary forfeiture of $12,910,000 for
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`apparent violations of 47 U.S.C. § 227(e)(1) and 47 C.F.R. § 64.1604, by spoofing
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`caller ID information with the intent to defraud, cause harm, or wrongfully obtain
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`anything of value. The NAL charged Defendant with making 6,455 unlawful
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`spoofed robocalls in the course of six campaigns—the five described above, as
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`well as another campaign of 1,496 robocalls targeting California in May 2018. The
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`$12,910,000 penalty comprised a base forfeiture amount of $1,000 for each of the
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`6,455 apparently unlawful calls, and an upward adjustment of 100% to reflect the
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`seriousness, duration, and scope of Defendant’s violations. The NAL ordered
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`Defendant to pay the full amount of the proposed forfeiture, or to file a written
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`statement seeking reduction or cancellation of the proposed forfeiture, within 30
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`days. A copy of the NAL is attached as Exhibit A. The additional details regarding
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`the robocall campaigns included therein are incorporated into this Complaint by
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`reference.
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`36. Defendant filed a written response to the NAL on February 25, 2020.
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`Defendant argued that he did not unlawfully alter caller ID information in violation
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`of 47 U.S.C. § 227(e)(1) and that he did not unlawfully intend to cause harm or
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`wrongfully obtain something of value. Defendant also argued that he could not be
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`charged with violations of 47 U.S.C. § 227(e)(1) and 47 C.F.R. § 64.1604 for the
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`1,496 robocalls made in the campaign targeting California, because the number
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`appearing in the caller ID used in that robocall campaign was validly assigned to
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`Defendant. Defendant included with his response a sworn statement that he “did
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`not make the automated phone calls and spoof caller identifications as alleged in
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`the FCC Notice of Apparent Liability[.]” A copy of Defendant’s response is
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`attached as Exhibit B.
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`37. On January 14, 2021, the FCC issued a Forfeiture Order in the amount
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`of $9,918,000 against Defendant for 4,959 violations of 47 U.S.C. § 227(e)(1) and
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`47 C.F.R. § 64.1604. As explained in the Forfeiture Order, the Commission found
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`Defendant’s arguments in his Response to the NAL unpersuasive, with one
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`exception; the Commission found that the caller ID used in the California robocall
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`campaign was validly assigned to Defendant at the time of the robocalls, and that
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`those robocalls therefore did not violate the prohibition on unlawful spoofing. The
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`Forfeiture Order found Defendant liable for 4,959 unlawful spoofed robocalls and
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`accordingly reduced the $12,910,000 proposed forfeiture to $9,918,000 to account
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`for the robocalls that Defendant did not unlawfully spoof. The Commission
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`explained that the $9,918,000 forfeiture amount was calculated by multiplying the
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`$1,000 base forfeiture by the 4,959 spoofed calls and applying a 100% upward
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`adjustment. The Commission concluded that, in weighing the relevant statutory
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`factors and FCC forfeiture guidelines, the proposed forfeiture properly reflected
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`the seriousness, duration, and scope of Defendant’s violations. The Forfeiture
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`Order directed Defendant to pay the forfeiture penalty in thirty days and provided
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`that if he did not, the matter could be referred to the Department of Justice for
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`enforcement. A copy of the Forfeiture Order is attached as Exhibit C. The
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`additional details regarding the robocall campaigns included therein are
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`incorporated into this Complaint by reference.
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`FCC’s Referral to the Department of Justice
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`38. Despite due demand, Defendant did not pay the forfeiture.
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`39. Pursuant to 47 U.S.C. § 504(a), the FCC referred the matter to the
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`Department of Justice for enforcement.
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`40. Pursuant to 47 U.S.C. § 401, the FCC also requested that the
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`Department of Justice seek a writ of mandamus commanding Defendant to comply
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`with the provisions of the Act. The FCC noted that the willful and repeated nature
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`of Defendant’s violations supports injunctive relief. A declaration from FCC’s
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`Acting General Counsel regarding that request is attached as Exhibit D.
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`COUNT ONE: ENFORCEMENT OF MONETARY FORFEITURE
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`41. The United States re-alleges and incorporates by reference Paragraphs
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`1 through 40 of this Complaint as though fully set forth herein.
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`42. Defendant violated 47 U.S.C. § 227(e)(1) and 47 C.F.R. § 64.1604, by
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`making 4,959 illegal spoofed robocalls from August to December 2018. These
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`calls were made with the intent to defraud, cause harm, or wrongfully obtain
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`something of value.
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`43. Defendant’s conduct supports the FCC’s determination that he
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`intended to cause harm to: (1) Mollie Tibbetts’ family; (2) Ben Olson and the
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`Sandpoint Reader; (3) the Commonwealth of Virginia and the City of
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`Charlottesville; (4) consumers; (5) numbering resources; and (6) subscribers of the
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`spoofed numbers.
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`44. As required by the Truth in Caller ID Act, 47 U.S.C. § 227(e)(5)(A),
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`the FCC issued an NAL to Defendant that provided him the notice required by 47
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`U.S.C. § 503(b)(4).
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`45.
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`The FCC properly released a Forfeiture Order against Defendant on
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`January 14, 2021, pursuant to 47 U.S.C. § 227(e)(5)(A), in which it imposed a
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`forfeiture penalty in the amount of $9,918,000 against Defendant for his violations.
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`46. By reason of the foregoing, Defendant is liable to the United States
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`for the forfeiture amount of $9,918,000 pursuant to 47 U.S.C. § 503(b), 47 U.S.C.
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`§ 227(e)(5)(A)(ii), and 47 C.F.R. § 1.80.
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`47. Demand has been made upon Defendant by the United States for the
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`sum due, but the amount due remains unpaid.
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`48.
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`The Certificate of Forfeiture is attached hereto as Exhibit E.
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`COUNT TWO: INJUNCTIVE RELIEF
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`49.
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`The United States re-alleges and incorporates by reference Paragraphs
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`1 through 40 of this Complaint as though fully set forth herein.
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`50.
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`Starting in 2018 at the latest, Defendant has willfully and repeatedly
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`violated 47 U.S.C. § 227(e)(1) and 47 C.F.R. § 64.1604 by making thousands of
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`unlawful spoofed robocalls with the intent to defraud, cause harm, or wrongfully
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`obtain something of value.
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`51. Defendant has refused to accept responsibility for his unlawful acts or
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`acknowledge their wrongful nature.
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`52.
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`In the absence of an injunction, Defendant will likely violate 47
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`U.S.C. § 227(e)(1) and 47 C.F.R. § 64.1604 in the future.
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`53. Under 47 U.S.C. § 401(a), a district court may issue a writ of
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`mandamus commanding any person to comply with the provisions of the Act and
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`the regulations issued thereunder including the provisions cited in Paragraph 52
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`above.
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`PRAYER FOR RELIEF
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`Wherefore, Plaintiff requests that the Court:
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`A. Order the enforcement of a forfeiture penalty in the amount of
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`$9,918,000, plus all applicable prejudgment and post-judgment interest,
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`recoverable against Defendant Scott Rhodes;
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`B.
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`Issue a writ of mandamus that permanently enjoins Defendant Scott
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`Rhodes from violating the provisions of the Communications Act and its
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`implementing regulations, including 47 U.S.C. § 227(e)(1) and 47 C.F.R. §
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`64.1604.
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`C. Award such other and additional relief as the Court may deem just and
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`proper.
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`Case 9:21-cv-00110-DLC-KLD Document 1 Filed 09/27/21 Page 18 of 18
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`Respectfully submitted,
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`BRIAN M. BOYNTON
`Acting Assistant Attorney General
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`ARUN G. RAO
`Deputy Assistant Attorney General
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`GUSTAV W. EYLER
`Director, Consumer Protection Branch
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`LISA K. HSIAO
`Assistant Director
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`/s/ Michael J. Wadden
`MICHAEL J. WADDEN
`PATRICK R. RUNKLE
`Trial Attorneys
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`United States Department of Justice
`Attorneys for Plaintiff United States
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`DATED: September 27, 2021
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