Nichole Burgan told the Sheriff’s Department that Phil Graham touched her inappropriately at the 1st Street Bar in Encinitas. Deputies later determined that never happened. / Photo by Jamie Scott Lytle
Nichole Burgan told the Sheriff’s Department that Phil Graham touched her inappropriately at the 1st Street Bar in Encinitas. Deputies later determined that never happened. / Photo by Jamie Scott Lytle

A San Diego man who’s facing a nearly $10 million fine for spoofing political robocalls says someone else put him up to it — he just won’t say who.

The Federal Communications Commission has accused Kenneth Moser, the owner of a local telemarketing company, of spreading false information about Republican Assembly candidate Phil Graham just days before the 2018 primary and using the phone number of a business rival to mask what he was doing.

Those robocalls helped take down Graham’s campaign, ensuring that two Democrats went on to the general election, flipping the North County Assembly seat blue.

In May 2018, a woman accused Graham of groping her in an Encinitas bar. Graham’s political opponents amplified the charge even after authorities determined it had never happened. Several days later, voters in the 76th Assembly District race received robocalls urging them not to vote for Graham because “we don’t need any more creeps in Sacramento.”

The disclaimer at the end of the call said it was paid for by Jennifer Jones, but Jennifer Jones didn’t seem to actually exist.

The 619-number listed on voters’ caller ID traced back to HomeyTel Network, a Ensenada-based telemarketing company founded by Conrad Braun in San Diego. Braun, however, told Voice of San Diego and later FCC investigators — under penalty of perjury — that he had nothing to do with the Graham robocalls.

But he did have a long and difficult history with Moser. Both are in the robocall business. And court records show they’ve sued each other in recent years.

The FCC says Moser used Braun’s number “with the intent to cause harm to HomeyTel and others,” which is prohibited by the Truth in Caller ID Act. Telemarketers disguise themselves all the time, but it takes on another level of seriousness when an election is at stake.

“He didn’t want people to know that he was making these calls,” said FCC Chairman Ajit Pai in a statement.

Moser told Voice of San Diego that because the total amount spent on the robocalls was under $1,000, he didn’t believe the person who hired him needed to disclose their involvement. He also said he used Braun’s number because he thought it was no longer working.

The California Fair Political Practices Commission, a watchdog agency, contacted him last spring, he said, and he’s been giving investigators information about who hired him. He declined to say who that person was in an interview with VOSD.

“I’m just the messenger,” he said. “It’s not my job as a vendor to regulate free speech.”

Graham, who’s former Gov. Pete Wilson’s stepson, declined to comment. The whole incident might have remained hidden from public view if Graham didn’t have the means and incentive to keep pursuing it. His legal team petitioned several government agencies to trace back the original source of the robocalls.

Braun, on the other hand, was ecstatic at the news. He laughed as he read parts of the press release out loud over the phone.

By his own estimation, he’d received more than 100 complaints from voters in 2018 as well as a cease and desist letter from Graham’s attorney. He cooperated with authorities and said he immediately suspected Moser of being involved in the robocalls, given their past.

“This guy is finally going to be held accountable for all the harm he’s caused people in San Diego County for over the past two decades and hopefully there’ll be criminal charges,” Braun said.

The FCC’s decision is not final. Moser and his company now have the opportunity to respond and submit evidence in their defense.

Nichole Burgan, the woman who originally accused Graham of battery, was charged in the summer of 2018 with filing a false police report. She pleaded guilty and was sentenced last year to two days in county jail and three years’ probation. She had connections to at least one other 76th Assembly District candidates — Jerome Stocks, a former Republican Encinitas City Councilman.

Moser said the person who paid him for the robocalls was “a gal, an individual,” but that it wasn’t Burgan. He declined to share any more details.

“It’ll come out eventually,” he said, “but I’ve got a fiduciary responsibility not to disclose my clients.”

Jesse Marx is Voice of San Diego's associate editor.

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