Friday, June 10, 2011

Political Robocalls Held Subject to Identification Requirements of Federal Law

This posting was written by Thomas A. Long, Editor of CCH Privacy Law in Marketing.

The State of Maryland could proceed with a Telephone Consumer Protection Act (TCPA) suit against a corporation that provided various services to candidates for political office, for broadcasting prerecorded voice messages to more than 112,000 telephone numbers belonging to Maryland residents, the federal district court in Baltimore has determined.

The messages allegedly did not identify the caller or disclose on whose behalf the call was being made, as required by the TCPA.

The corporation had been hired to serve as a political consultant by a candidate in the 2010 Maryland gubernatorial election. The message—which was broadcast via an automated dialing system on election day, primarily to registered Democrats residing in Baltimore City and Prince George’s County—stated that the incumbent governor had been “successful” in the election and did not need the recipients’ votes. The message did not indicate that the calls were made on behalf of the opposing candidate.

Political robocalls are not exempt from the TCPA’s identification and disclosure requirements, the court said. Those requirements were not limited to calls made for a commercial purpose; they apply to any calls made with an autodialer.

Liability of Corporation, Owner, Employee

Even though the calls were placed by a third-party telemarketing company, the corporation could be liable under the TCPA as an entity responsible for initiating the calls.

The corporation allegedly went to the telemarketer’s website, uploaded a prerecorded message and a list of phone numbers, and directed the telemarketer to broadcast the message to those numbers. The corporation was in a position to ensure that the content of the message complied with the TCPA, according to the court.

The corporation’s owner and its employee could be individually liable under the TCPA. The statute authorized state attorneys general to bring actions against “any person” who violated the disclosure requirements, the court said. The State contended that the owner and employee personally participated in the violations.

First Amendment

The TCPA did not violate the First Amendment, in the court’s view. The TCPA section at issue imposed technical requirements that applied to all prerecorded phone messages. The requirements were content-neutral and subject to intermediate scrutiny.

The government had a substantial interest in protecting residential privacy. The disclosure requirements allowed call recipients to terminate the call and to contact the caller to prevent future unwanted calls.

The TCPA was narrowly tailored; the statute allowed the continued use of autodialers while protecting the right of the recipient to choose whether or not to receive a message. The corporation had ample alternative channels for communication. The TCPA also promoted the government’s interest in preventing citizens from being misled as to the originators of recorded phone messages, the court said.

The May 25 decision is State of Maryland v. Universal Elections, Inc., CCH Privacy Law in Marketing ¶60,634.

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