To Get Meaningful Change, You Must Hit Them Where It Hurts: Maryland District Court Holds Robo-calls for Gubernatorial Election Campaign Not Exempt From TCPA

We get it — this case has nothing to do with personal property finance.  But, allow us a little snicker this Friday morning because Maryland politicos running for office got their comeuppance under the TCPA when they robocalled Maryland voters.  In Maryland v. Universal Elections, — F.Supp.2d –, 2011 WL 2050751 (D.Md. 2011), Judge Blake held that political speech was not exempt from the TCPA, and allowed the State of Maryland to proceed with an enforcement action against Universal Elections, a corporation offering various services to candidates for political office, including broadcasting prerecorded voice messages to voters. During the 2010 Maryland gubernatorial campaign, they were hired to serve as political consultants by the campaign of candidate Robert L. Ehrlich.  Universal Elections then retained Robodial.org, who provides a variety of telecommunications services, including voice telephone broadcasting services on behalf of political clients.  Judge Blake rejected the argument that political speech was exempt from the TCPA’s regulation:    

The defendants argue that the disclosure requirements in the TCPA do not apply to “political robocalls” (Defs.’ Mem. at 7–8) because the Federal Communications Commission (FCC) has exempted such calls from the requirements of the TCPA. (See Defs.’ Reply at 6 (citing 47 C.F.R. § 64.1200(a)(2)(ii)).) Although the FCC has exempted certain calls “not made for a commercial purpose” from a different section of the TCPA—namely, the section requiring “prior express consent of the called party” for certain prerecorded calls, 47 U.S.C. § 227(b)(1)(B)—that exemption does not apply to the identifying requirements of § 227(d). All calls made using an “automatic telephone dialing system,” not just calls made for a commercial purpose, must satisfy § 227(d). ¶  The defendants also cite a bill that has been proposed but not enacted that would require that any auto-dialed recorded call that “promotes, supports, attacks, or opposes a candidate for Federal office” must disclose the identity and contact information of the person making the call or causing the call to be made. See Robocall Privacy Act of 2009, S. 1077, 11th Cong. (2009). As discussed above, however, § 227(d) of the TCPA does not exempt political robocalls. The plain language applies to “any telephone call using any automatic telephone dialing system.” 47 U.S.C. § 227(d)(1). The fact that an unenacted bill would provide identification requirements specifically for political robocalls does not alter the fact that the Election Day calls fall within the plain language of § 227(d) of the TCPA, and thus are subject to its identification requirements.

 

There you go.