The presidential campaign is well underway in the U.S., even though the election is over 6 months away. Many candidates reach out to the public through automated phone calls or texts, often referred to as “robocalls,” and prerecorded voice calls. To remind candidates and their campaigns that those calls and texts are regulated under the federal Telephone Consumer Protection Act (TCPA), the Enforcement Bureau of the Federal Communications Commission (FCC) released a detailed Enforcement Advisory on March 14, 2016. The Advisory reiterated the FCC’s commitment to protecting consumers from harassing and intrusive robocalls and texts. Violations of the TCPA may subject political campaigns and candidates to FCC-imposed fines as high as $16,000 per violation.
The Advisory is a good reminder that even political messages can be regulated, despite strong First Amendment protection for political speech. TCPA regulations restrict the use of prerecorded voice messages and automatic telephone dialing systems (ATDS). The rules vary depending on whether a call is delivered to a business or residential landline telephone, to a cell phone, or to some other category of protected telephone lines such as a hospital room. Generally, political campaign-related robocalls may be made to most landline telephones, so long as the message includes the required identification disclosures. For example, the start of the message must clearly identify the entity or person responsible for initiating the call, and the caller must display his telephone number. Also, political calls can be made to phone numbers included on Do-Not-Call Lists because such a call is not considered commercial in nature, but instead, encourages political discourse.
Mobile phones and texts are another matter. Political robocalls or texts to mobile devices are forbidden, unless the caller has the “prior express consent” of the called party. Also, callers claiming to have “prior express consent” to call a mobile phone have the burden of proving that they obtained the requisite consent before making a call or sending a text. And as the Advisory makes clear, call recipients may revoke their consent verbally or in writing, at any time.
The Advisory also reminded callers of other basic TCPA rules: (1) prerecorded voice messages and autodialed calls to mobile devices (including cell phones) are forbidden, except for calls made: (a) for emergency purposes, (b) with the prior express consent of the called party, and (c) to collect certain government debts; and (2) no prerecorded calls may be made to landline phones that serve as emergency telephone lines; or to lines in guest or patient rooms at a hospital, nursing home, or similar establishment; or to toll-free lines unless the called party has given “prior express consent.”
For more information, see the full Enforcement Advisory here.
Deborah Lodge is a partner in the Intellectual Property and Technology practice group at Squire Patton Boggs. Koyulyn Miller is an associate in the Communications practice. Before joining Squire Patton Boggs, Koyulyn served as special counsel to the chief of the Enforcement Bureau at the Federal Communications Commission. Monica Desai and Paul Besozzi are partners in the Communications practice at Squire Patton Boggs. Ms. Desai is a former chief of the Consumer and Governmental Affairs Bureau at the Federal Communications Commission and often serves as an expert witness for TCPA disputes. Mr. Besozzi has substantial experience practicing before the Federal Communications Commission on TCPA and other consumer protection matters.