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Fake Robocalls Falsely Accusing Assembly Candidate Phil Graham Garner $10M FCC Fine

‘Somebody or some group should be very worried’

By Katy Grimes, January 13, 2020 2:09 am

Phil Graham, a Republican who was the leading candidate for the San Diego 76th Assembly District in 2018, was falsely accused of inappropriately grabbing and kissing a woman against her wishes right before the primary election.

Graham, who is the stepson of former California Gov. Pete Wilson, was the favorite for the Assembly seat before the conveniently timed allegations spread like wildfire, thanks to a series of 47,000 robocalls days before the primary election.

California Globe spoke with Phil Graham in December about what happened in 2018. We covered the formal complaint he filed with the Federal Elections Commission, and complaints to the California Fair Political Practices Commission, as well as the Public Integrity Unit at the U.S. Department of Justice.

The Assembly district, which had previously been considered a safe Republican seat, was won by Democrat Tasha Boerner Horvath in 2018, with the support of San Diego Democrat Assembly members Lorena Gonzalez and Todd Gloria.

Graham feels he was so deceitfully targeted because Democrats wanted the Assembly seat.

The Federal Communications Commission recently announced it will fine a San Diego firm nearly $10 million for allegedly spoofing a competing company while sending accusatory robocalls about former state Assembly candidate Phil Graham before the 2018 primary, the San Diego Union Tribune reported in December.

“Telemarketing company Marketing Support Systems and its owner, Kenneth Moser, made more than 47,000 unlawful robocalls over a two-day period in May 2018, according to the FCC. The commission alleges Moser “spoofed” the calls, making it look like a competing company, HomeyTel Network, made the calls. Spoofing is when someone disguises their phone number to appear as someone else’s number on caller ID.”

Graham said he submitted a 22-page complaint to the FEC.

The woman, Nichole Burgan, was criminally charged, ended up pleading guilty to the false allegations, and did serve time in jail – two days, according to Graham.

The question is, “who put her up to it?” Graham said if whoever put Nichole Burgan up to the untrue #MeToo accusations of sexual abuse, and the subsequent advertisements and robocalls, gets away with this, “they will do it again.”

The Voice of San Diego reported on the ongoing damage because of Burgan’s false allegations:

“We deserve better,” said a woman in one of several Facebook ads targeted exclusively at women. It ran May 30, one day after the Sheriff’s Department publicly closed the case on Burgan’s allegation, and it was paid for by a political action committee sponsored by the California Labor Federation, AFL-CIO, and backing Democrat Tasha Boerner Horvath.

A mailer funded by the public-employee union SEIU also encouraged Republicans to reconsider their endorsement of Graham and stop attacking Boerner Horvath, who was considered the strongest challenger.

Despite the digital ads being pulled from Facebook, consultants working with labor groups continued to run new ads pushing voters to a website that insinuated Graham was dangerous. It made vague references to a “troubling allegation,” VOSD reported. “If anyone was interested in knowing more, a quick Google search would do the trick.”

And then the robocalls hit.

“Creepy alert,” said a woman on the other end of a robocall that hit phones on May 30. She cited press coverage of Burgan’s allegation, and asked why Graham was out harassing a woman when he should have been at home sleeping.

“Vote carefully on June 5,” the caller said. “We don’t need any more creeps in Sacramento. Don’t vote for Phil Graham. #JustSayNo.”

Then came the disclaimer: “Paid for by Jennifer Jones.”

Graham said that the calls appeared to come from Mexico, but they tracked the calls to a robocall company in San Diego. The owner of the company denied making the calls. “Under penalty of perjury, he contends that someone spoofed his name and number, making it look like he was behind the political smear,” VOSD reported.

Graham said the calls violated the federal Truth in Caller ID Act and the Telephone Consumer Protection Act.

The FCC found that Moser manipulated caller ID information to harm his competitor — HomeyTel Network —and sent more than 11,000 prerecorded voice messages to wireless phones alone, without the phone owner’s consent, according to the FCC.

However, Moser contends that he didn’t have anything to do with creating the robocall message, because it was emailed to him and he was instructed that the sender wanted to remain anonymous. It may be up to the DOJ to ferret out the anonymous sender.

This is the statement from Phil Graham’s attorney Brian T. Hildreth, a Partner of Bell, McAndrews & Hiltachk, LLC:

After a six month investigation by the Federal Communications Commission, the FCC is proposing a nearly $10 million fine against California telemarketer Ken Moser in connection with Moser’s efforts to mislead voters with approximately 50,000 robocalls containing fraudulent and false accusations relating to the 2018 Primary Election for the California State Assembly and Assembly candidate Phil Graham.

The proposed Commission action, formally called a Notice of Apparent Liability for Forfeiture (“NAL”), contains allegations that advise a party on how it has apparently violated the law and may set forth a proposed monetary penalty.  After these substantial developments, it is now imperative that the USDOJ undertake a criminal investigation and prosecution.

We are calling for the Public Integrity Unit at the U.S. Department of Justice to launch their own investigation to determine if other individuals and/or groups were involved in this fraud and election tampering.  We stand ready to assist the USDOJ in any way necessary.

As the FCC noted, the calls took place about one week prior to the primary election for the California State Assembly, 76th District.  The calls made false and deceptive allegations about Mr. Graham.  The allegations had already been investigated and disproven by the San Diego County Sheriff’s Department.  The California Secretary of State referred a complaint about the matter to the FCC’s Enforcement Bureau, which investigated, resulting in today’s proposed fine.  The calls unquestionably had a devastating impact on Mr. Graham and his candidacy for elective office.

The Truth in Caller ID Act prohibits manipulating caller ID information with the intent to defraud, cause harm, or wrongfully obtain anything of value.  In addition, to finding that Moser apparently violated the Truth in Caller ID Act, the Commission’s Enforcement Bureau found separately that Moser sent more than 11,000 prerecorded voice messages to wireless phones, without consent, in violation of the Telephone Consumer Protection Act’s (TCPA).

While there has rightly been a significant focus on election interference at the national level, we respectfully ask that the USDOJ apply the same level of scrutiny at the state and local level to prevent any new illegal acts.

The fact remains, Phil Graham was systematically cheated out of a fair election, and potentially an Assembly office, by some deep political operatives with deep pockets and deeper connections. And thus far, only a $10 million fine has been issued. Is that what it costs to flip an Assembly seat in California?

As Graham said when we spoke, “Somebody or some group should be very worried.”

Katy Grimes

Katy Grimes, the Editor of the California Globe, is a long-time Investigative Journalist covering the California State Capitol, and the co-author of California's War Against Donald Trump: Who Wins? Who Loses?
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3 thoughts on “Fake Robocalls Falsely Accusing Assembly Candidate Phil Graham Garner $10M FCC Fine

  1. Any person or group who would dare to do something like this must face a very harsh consequence such as a lengthy prison sentence. There must be a deterrent. Otherwise these kinds of attacks on a candidate will become routine. We can’t have this.

  2. Not so puzzling that most of these attacks are against Republican candidates when you consider that deviously liberal Dianne Feinstein led the same false charge against Justice Brett Kavanaugh during his Supreme Court nomination. That’s a pretty major endorsement of these subversive tactics by the senior senator of the same state!

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