Summary

With the 2014 election season looming, the reality is that another political campaign season is already underway now in mid-2013. As we enter another election season, it is important to remember that those that write the laws must also follow the laws. The Telephone Consumer Protection Act, 47 U.S.C. § 227 (TCPA), prohibits political campaigns from using automated telephone dialing systems (autodialers) to call cellular telephones or send text messages to cellular telephone numbers unless the owner of that phone line has expressed their permission to receive messages from that specific sender.

Aside from private litigant enforcement, the Federal Communications Commission (FCC) is the primary regulator in this space. Earlier this year the FCC cited two marketing companies with making millions of illegal autodialer and text message calls to wireless phone numbers in the run up to the 2012 elections. Given the legal and political risks, politicians and political parties must exercise extreme caution before beginning a calling or text message effort. As a preliminary matter, if calls are not made by staff and volunteers, a political campaign should exercise due diligence in selecting third party telemarketing vendors. Also, a political campaign should ensure that valid consent to receive messages has been obtained prior to engaging in a text message effort.

TCPA Overview

At core, the TCPA is a privacy law. The TCPA seeks to reduce unauthorized calls or text messages to cell phones, pagers, or “any service for which the called party is charged for the call.” The TCPA also limits unauthorized artificial or prerecorded voice messages to residential telephone lines and unsolicited fax advertisements. The FCC’s implementing regulations impose a number of other requirements, ranging from permissible calling times to do-not-call lists to requiring the transmission of accurate caller id information.

TCPA Applies in Part to Political Calls

While the TCPA is primarily concerned with telemarketing, or commercial solicitations, some of its requirements and prohibitions apply to political campaigns. See generally Federal Communications Commission, Political Campaigns and Promoters are Reminded of Restrictions on Autodialed and Prerecorded Calls, FCC Enforcement Advisory No. 2012-06 (Sept. 12, 2012). The law and regulations strike a balance between First Amendment political speech and content-neutral privacy regulations. The applicable restrictions vary according to whether a call is delivered to a business or residential landline telephone or a cell phone. The TCPA and the FCC’s rules set forth restrictions that govern the use of prerecorded voice messages and automated telephone dialing systems, which may include certain political calls.

Political Calls are Exempt from the Do Not Call Rules

In order to constitute a “telephone solicitation,” a call or message must be “for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services . . . .” 47 U.S.C. § 227(a)(4). Neither the National Do Not Call Registry nor the company-specific do-not-call restrictions limit calls by political organizations, charities, or telephone surveyors. The national do-not-call registry’s restrictions apply only to telemarketing calls made by or on behalf of sellers of goods or services, and not to charitable or political fundraising calls. Similarly, the company-specific do-not-call restrictions expressly exclude tax-exempt nonprofit organizations. The rationale for this distinction is found in the TCPA’s legislative history, citing statistical data indicating that “most unwanted telephone solicitations are commercial in nature” and that “unwanted commercial calls are a far bigger problem than unsolicited calls from political or charitable organizations.” H.R. Rep. No. 102-317 at 16 (1991).

Manually-Dialed Calls are Permissible Under the TCPA

It is legal for a political campaign to have volunteers call prospective voters on any phone numbers using manual dialing – good old-fashioned finger dialing on a rotary phone if you can find one – even without the prior express consent of the called party. The logic in this situation is that the reachable audience is smaller and more targeted, whereas a computer could dial almost without limit using random or sequential numbering conventions.

Autodialed Calls to Landlines are Permissible Under the TCPA

Political campaigns may use prerecorded messages or autodialed calls to landline phones without violating the TCPA, provided that certain identifying information is provided to the called party. All prerecorded messages must provide the following identifying information: (1) immediately disclose the name of the person or entity responsible for the call; and (2) at some point during the call, disclose the phone number of the person or entity responsible for the call. See 47 U.S.C. § 227(d)(3)(A)(i, ii).

Prior Express Consent is Required to Place Calls / Texts to Cell Phones

The plain language of the TCPA prohibits the use of autodialers to make any call to a wireless number in the absence of an emergency or the prior express consent of the called party. See 47 U.S.C. § 227(b)(1)(A)(iii). This prohibition applies regardless of the content of the call, and is not limited only to calls that constitute “telephone solicitations.” See 137 Cong. Rec. S18781-02, S18785 (Nov. 27, 1991) (statement from Senator Larry Pressler (R-SD) that “[t]his bill also allows hospitals, police stations, fire stations, and owners of paging and cellular equipment to eliminate all unsolicited calls” (emphasis added)).

There are only two exceptions to the prohibition against sending prerecorded messages or autodialed calls to cell phones, namely: (1) calls made for emergency purposes; and (2) calls made with the prior express consent of the called party. See 47 U.S.C. § 227(b)(1)(A)(iii). Political campaign calls do not fit into either exception. Contrary to political belief, telling voters what will happen if they vote for the opposing candidate is not an “emergency.” Under the TCPA, it is illegal for a political campaign to contact voters using auto dialers or deliver a prerecorded message to their cellphones without prior express consent.

What is Prior Express Consent?

The term “express consent” is not defined in the TCPA. Unfortunately, defining what is effective “prior express consent” under the TCPA is like Justice Stewart’s definition of pornography in Jacobellis v. Ohio – I know it when I see it. What is clear is that courts have stated that “[e]xpress consent is consent that is clearly and unmistakably stated." See Satterfield v. Simon & Schuster, 569 F.3d 946, 955 (9th Cir. 2009). It is also clear that the burden is on the calling party to prove consent. See In re Rules and Regulations Implementing The Telephone Consumer Protection Act of 1991, 23 FCC Rcd. 559, 565, 10 (2008). Also, since consent is a fact-specific inquiry, dismissal on the pleadings or by summary judgment is by no means guaranteed in the event of litigation.

The better and more conservative approach is to ensure that consent is given by the called party to the specific calling party. There are, however, a few cases that can be used to support extending the scope of consent to a broader universe of calling parties. Regardless, to be cautious, obtaining anything short of specific express consent poses a risk. While the risk may be low, the risk to political campaigns is reputational as well as financial. I imagine Mitt Romney thought his audience at Marc Leder’s home was friendly, but the “47% speech” went viral shortly thereafter.

Political Speech and State-Specific Restrictions

A number of states have more restrictive laws on telemarketing, and some even attempt to regulate political speech or do not extend the exemptions that exist under the TCPA to political campaign calls. For instance, some states also place political calls on state DNC restrictions. A state-by-state analysis of such laws is required prior to launching any political campaign. On a general level, however, valid consent is typically an exception to calling phones listed on DNC registries. Beyond consent, additional support for engaging in such calls may be provided by First Amendment protections, depending on the nature of the state restriction. It might shock political candidates, but not all laws pass constitutional muster.

It is noteworthy that political speech, even if carried out by professional telemarketers, has long been considered the touchstone of First Amendment protection in Supreme Court jurisprudence. In fact, a few years ago, the U.S. Supreme Court declined to hear an appeal by a political-polling firm challenging a North Dakota law barring telemarketers from making prerecorded interstate calls to that state's residents. Under a strict scrutiny analysis, courts are likely to strike down legislation that attempts to regulate political speech. The issue is whether the restriction is content-neutral and narrowly tailored to achieve a compelling governmental interest.

Takeaway

Earlier this year the FCC cited two marketing companies with making millions of illegal autodialer and text message calls to wireless phone numbers leading up to the 2012 elections. To be fair, the FCC cited entities calling for both Democratic and Republican campaigns. These enforcement actions should remind political campaigns that while prerecorded messages and autodialed calls are allowed to most landline telephone numbers, provided that certain rules are followed, such calls are prohibited to wireless phones and other mobile devices.