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Political Robocall Regulatory Considerations

By Sean P. Killeen, David M. Powers / Sep 01, 2016

In the midst of the campaign season it is important for campaign committees, political party committees, third-party advocacy groups, and vendors to be aware of the laws regulating prerecorded voice messages and autodialed calls ("robocalls").  Parties making robocalls must ensure they are in compliance with the regulations set forth by the Federal Communications Commission ("FCC"), the Federal Election Commission ("FEC"), and the states. 

Federal Regulations

Although the Federal Trade Commission's ("FTC") Telemarketing Sales Rule does not apply to political calls, the FCC's Telephone Consumer Protection Act ("TCPA") does contain regulations applicable to political robocalls.  Earlier this year, the FCC issued an Enforcement Advisory providing a reminder to parties on the regulations governing robocalls. 

A common misconception is that the TCPA regulations apply only to prerecorded calls. In fact, the regulations are also applicable to calls by a live person made using a predictive dialer. Predictive dialers dial numbers using automated equipment and then connect the called party to a live person. 

Political robocalls (including autodialed live calls) made to cell phones are prohibited, unless the caller has given "prior express consent." The burden of proof is on the caller to demonstrate that they have received prior express consent. Moreover, the recipient of the call may revoke their consent at any time. 

The TCPA requires that robocalls state, at the beginning of the message, the identity of the individual or entity responsible for initiating the call. This means, for example, that all calls must begin by announcing that the call is made by the Smith for Congress Campaign Committee. The robocall message must also include a contact phone number (other than the number of the autodialer). 

Political committees should also be compliant with the FEC's disclaimer requirements applicable to public communications. In addition to stating the identity of the entity paying for the call, the FEC requires political disclaimers to state whether the call was authorized by a candidate, and either the street address, web address, or phone number of the entity paying for the call. By including the phone number the entity paying for the call can meet both the requirements of the TCPA and the FEC. 

State Regulations

In addition to FCC and FEC regulations, parties making robocalls must also be sure to comply with state regulations, which are sometimes more strict than federal law. Complying with state robocall regulations requires a state-by-state analysis as the requirements between each state vary greatly. Below are several examples of state requirements.

California

Robocalls in California must begin with a live operator stating (1) the nature of the call; (2) the name, address, and telephone number of the entity represented; and (3) inquire whether the person called consents to hear the robocall. Robocalls are prohibited between 9:00 pm and 9:00 am. Moreover, the entity must submit an application to the telephone corporation whose service is being used before making any robocalls. 

New Jersey

All robocalls must be introduced by a live operator who must obtain consent from the called party before delivering the robocall message.

New York

New York requires that all robocalls state the nature of the call and the name of the person on whose behalf the message is being transmitted at the beginning of the call. The address and telephone number of the person on whose behalf the message is being transmitted must be stated at the end of the call. It is also unlawful for the party responsible for the robocall to impede the name and/or telephone number from being displayed on a caller ID device.

Texas

Within the first 30 seconds, all robocalls must state the nature of the call, the identity of the sponsor of the call, and the telephone number from which the call is made. Before initiating any robocalls the entity sponsoring the call must obtain a permit from the Commission, and provide notice to each telecommunications utility whose system will be used written notice of the type of device to be used. Robocalls are prohibited before 9:00 am or after 9:00 pm on Monday-Saturday, and before 12:00 pm or after 9:00 pm on a Sunday. 

For further information regarding the myriad of federal and state robocall regulations, you may contact David Powers at dpowers@clarkhill.com | (202) 552-2367 or another member of Clark Hill's Political Law team.