The midterm elections are just around the corner, and with them could come a host of potential Telephone Consumer Protection Act (“TCPA”) concerns if recent history is any indication. The TCPA places restrictions on, among other things, robocalls and automated text messages, both of which often are used by political campaigns seeking votes or donations. Less clear is whether the TCPA actually applies to political campaigns’ calling and texting operations.

The FCC has asserted that the TCPA covers campaign calls according to the Act’s plain language. But the FCC’s guidance isn’t necessarily heeded by campaigns, as shown by the different treatment of the issue in two recent articles. One describes the proliferation of robocalls in NYC elections and depicts political campaigns’ actions as politically protected speech that is exempt from the TCPA, directly contradicting the FCC’s stance on the matter. The other concerns the same scenario in Hickory, NC’s mayoral election, but acknowledges that a campaign’s robocalls may have been TCPA violations, with officials blaming North Carolina election law for the lack of guidance.

Courts have not done much to help clear up the issue. Arkansas and South Carolina laws that prohibited political robocalls were struck down on First Amendment grounds. Those decisions, however, turned on the content-based nature of the law, not on the particular speech involved. Following similar reasoning, Indiana’s general prohibition on robocalls has been upheld, with the Supreme Court recently declining review. Indiana’s law, unlike South Carolina’s and Arkansas’, is a general ban, which makes it content neutral and subject to a lower level of scrutiny. In sum, whether political campaigns are subject to the TCPA represents a murky legal question right now. Considering the general quagmire TCPA issues can raise, as demonstrated by these recent complaint, it’s important to be aware of the scope of telemarketing laws and take steps to comply.