States enforce limits on robocalls

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With the elections nearing, the number of news items about the use of technology to automate the delivery of political messages is rising. Florida Rep. Stan Jordan, a Republican, recently announced that he was drafting a bill to extend the state's do-not-call program to calls that deliver political prerecorded messages. Such bills have been introduced regularly in the past few years, but as more complaints filter in regarding the use of these calls, expect to see political "robocalls" fall under increasing regulation.

Despite what many companies that deliver political messages may believe, 23 states already regulate such calls. These rules carry requirements including registration and bonding, introduction by a "live" person before playing the message, mandatory disclosures, no random or sequential dialing and certain calling-time restrictions.

At the national level, the Federal Communications Commission prohibits (without consent) the delivery of prerecorded messages, as well as the use of predictive dialers to deliver live messages, to cell phone numbers. To buy a review of such laws, visit www.ataconnect.org.

Indiana and Oklahoma have made headlines recently from the enforcement of robocall laws. Indiana requires introduction of any prerecorded message by a live operator; the message may not be played unless the called party grants permission. Attorney General Steve Carter, perhaps seeking to stem the tide of illegal political calls, issued a press release in late August that explained Indiana's law and made clear that all violators would be pursued.

One entity that apparently failed to get the message was the subject of a lawsuit recently filed by the attorney general. This California-based group, thinking that it was not subject to Indiana's rules since it was placing calls from out of state, has nonetheless agreed to stop making automated phone calls pending the lawsuit's outcome.

The company that made the calls on behalf of this California-based entity, FreeEats.com, has sued Indiana, arguing that its restrictions on such calls violate free speech rights under the U.S. and Indiana constitutions. FreeEats, a vendor that recently lost a similar case in North Dakota in which it sought federal preemption of the state restrictions, also will argue that Indiana's law is an unconstitutional restraint on interstate commerce.

Oklahoma, despite the absence of any state law affecting automated political calls, recently settled actions involving two companies that made such calls to Oklahoma citizens. Citing violations of FCC rules requiring the inclusion of a contact number as well as mandatory identification disclosures, Oklahoma Attorney General Drew Edmondson fined each company $3,000 for investigative costs.

All candidates, political groups and the entities that serve them must become versed in the laws affecting the delivery of automated messages. Though this area was long considered off limits due to the protections offered political speech, the recent actions by Indiana and Oklahoma should act as a wakeup call to politicians everywhere.

Joseph Sanscrainte is an attorney with Bryan Cave LLP's New York office. Reach him at joseph.sanscrainte@bryancave.com.

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