It’s finally Fall, the leaves are turning, and political campaigns are in full swing. As candidates and political parties initiate calls and texts to solicit money, votes, opinions, or all three, it’s important to remember that political campaigns are not exempt from the Telephone Consumer Protection Act (TCPA) or similar state telemarketing regulations. The U.S. Supreme Court affirmed this position in July 2020 in Barr v. American Political Consultants, holding that the application of the TCPA to political calls was not a violation of the First Amendment’s protection of political speech. TCPA violators face penalties of $500 per call, which can be trebled to $1500 for willful violations, which means class action attorneys will be busy fishing for TCPA class action lawsuits. Read on to make sure that your campaign does not get hooked for a TCPA violation.
While manually-dialed live voice political calls are not subject to the TCPA, calls and texts to cell phones using an Automatic Telephone Dialing System (ATDS) or that deliver a prerecorded message are prohibited unless the caller has obtained Prior Express Consent (PEC) from the called party. The definition of what constitutes an ATDS was solidified earlier this year in Facebook, Inc. v. Duguid, in which the U.S. Supreme Court ruled that equipment is an ATDS if it (a) stores telephone numbers using a random or sequential number generator (and dials them); or (b) produces telephone numbers using a random or sequential number generator (and dials them).
While the TCPA does not define PEC, the FCC has clarified that PEC is granted when a person, absent instructions to the contrary, knowingly releases their phone number as a means of being called and the subsequent call is closely related to the purpose for which consent was given. This means that for a political caller to have PEC, the caller must have been provided the phone number by the called party. I am frequently asked if a person gives express consent to a campaign and other political callers when providing their phone number to register to vote. The answer is “No” because the person is not giving their phone number to campaigns or other political callers, they are only giving it to the voter registration organization. Also, if the person provides their phone number to a political party, but not to a specific candidate, they have not provided PEC to that candidate. Callers are responsible for maintaining proof of PEC for every call made.
A simple checklist of dos and don’ts will go a long way to make sure your campaign, PAC, Super PAC, trade association, 501(c)(4), or other political or grassroots caller/texter does not violate the TCPA:
- If your volunteers are manually dialing telephones the TCPA likely does not apply.
- Autodialed calls or texts to cell phones require PEC.
- Know where your calling list came from and ask for proof of consent before calling or texting cell phones using an autodialer or prerecorded messages.
- Political callers must maintain proof of PEC for every call for which it is needed.
- A called party can revoke consent at any time and through any reasonable means.
- Prerecorded messages require PEC and must disclose:
- at the beginning of the message, the business, individual, or other entity name of the calling party; and
- the telephone number of the calling party.
- Be aware that many states have restrictions on political calls.
- Scrubbing against the DNC Registry is not required for political calls.
Keeping these ground rules in mind and doing your research prior to initiating any political calling campaign will be the key to smooth sailing in 2021.
Michele is the Managing Partner at M&S and former Chief of the Ohio Attorney General’s Consumer Protection Section. Bringing more than two decades of experience in the consumer protection arena, she advises highly regulated businesses on a wide range of telemarketing, privacy, and other consumer protection matters.