Navigating TCPA Regulations for Political Calls

As the political season heats up and we approach a high-stakes general election, political campaigns are ramping up their outreach efforts. This surge comes with a rise in political calls and texts, making it crucial for campaigners – as well as the vendors and platforms supporting them – to understand their obligations under the Telephone Consumer Protection Act (TCPA).

Does the TCPA apply to political calls?

Many folks mistakenly believe that political campaigns are exempt from the TCPA. They are not, and political callers face the same penalties for TCPA violations as commercial ventures. The TCPA restricts political calls and texts using an Automatic Telephone Dialing System (ATDS) or prerecorded messages without Prior Express Consent (PEC) from the called party. Violations can result in penalties of $500 per call, which can increase to $1500 for willful violations – lucrative territory for professional plaintiffs and class action attorneys.

It should also be noted that political calls and text must comply with state telemarketing laws as well.

So, are manually-dialed live voice political calls subject to the TCPA?

Manually-dialed live voice calls are not subject to the TCPA – good news for campaigns utilizing volunteer-driven call initiatives. However, calls and texts using an ATDS or prerecorded message require PEC from the called party.

What about calls using AI?

If you are using AI-generated voice, these calls would qualify as pre-recorded messages under the TCPA. In addition, beware of state laws mandating certain disclosures related to the use of AI and potential privacy concerns if your AI provider is using information collected during the calls for other purposes.

How is PEC granted, and what responsibility do political callers have?

While the TCPA does not define PEC, the FCC has affirmed 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, they must obtain the phone number directly from the called party. Callers are responsible for maintaining proof of PEC for every call made.

Does providing a phone number when registering to vote constitute PEC for campaign and other political calls?  

No, providing a phone number for voter registration does not grant consent to political callers because the phone number is given to the voter registration organization, not to individual campaigns or political callers. Likewise, providing a phone number to a political party does not grant consent to specific candidates.

What are some dos and don’ts to ensure TCPA compliance for political calls and texts?

• • If your volunteers are manually dialing telephones, the TCPA likely does not apply.
  • 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 the following 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.

Whether your call or text campaign is on behalf of a PAC, Super PAC, trade association, 501(c)(4), or other political or grassroots organization, keeping these ground rules in mind and doing your research before initiating your call or text campaign will be the key to smooth – and compliant – sailing.

*Hana Nishikawa contributed to this article.