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We’re late to the party, but here’s our take on ‘robocalls’

By: 25 May 2010 No Comment

A lawyer friend of mine called the other day and he was irate about those automated phone calls that he’s received lately.

His point was this —  “robocalls” from politicians are prohibited under Ark. Code Ann. 5-63-204, so why are voters annoyed with them?

That question has been answered by a couple of other publications here in the Natural State (more on that in a minute), but I’ll go ahead and beat that dead horse, anyway. Why? Because those automated calls aggravate the dickens out of me so I might as well throw in my two cents.

By the way, it seems that both Democrats and Republicans are intent on pestering voters with their autodialers and canned campaign messages, so I’ll refrain from pointing out any individual politicians as that seems more than a bit unfair. At least the two parties can agree on something — a way to reach out and aggravate voters by the thousands.

At any rate, the relevant part of the aforementioned section from the Arkansas Code is as follows:

5-63-204. Automated telephone solicitation.

(a) (1) It is unlawful for any person to use a telephone for the purpose of offering any goods or services for sale, or for conveying information regarding any goods or services for the purpose of soliciting the sale or purchase of the goods or services, or for soliciting information, gathering data, or for any other purpose in connection with a political campaign when the use involves an automated system for the selection and dialing of telephone numbers and the playing of recorded messages when a message is completed to the called number.

In other words, politicians are prohibited from using automated systems to select phone numbers, dial people and blare campaign messages at them. Those caught violating the statute can be convicted of a Class B misdemeanor or hit with civil penalties.

However, it seems there’s some question regarding whether the statute as it relates to political campaigning might run afoul of federal law. You can read Jason Tolbert’s take on this whole scenario here and Max Brantley’s here.

The Arkansas Attorney General’s office, meanwhile, appears to back the notion that the law might not survive a federal challenge when it comes to politicians using autodialers in their campaigns. Here’s an analysis from Chief Deputy Attorney Brad Phelps that was sent over to me yesterday:

Our office has been fielding inquiries regarding what are commonly called political robocalls and the application the Arkansas statute which generally prohibits the use of an autodialer in conjunction with a recorded message to such calls. (Ark. Code Ann. 5-63-204.)

While the Arkansas statute clearly applies to calls made in connection with a political campaign, what is not clear is whether one or more federal statutes preempts application of the Arkansas statute to some or all of the calls being received by Arkansas residents.

First, a federal statute (called the Telephone Consumer Protection Act of 1991, or TCPA) prohibits robocalls for commercial purposes, but does not prohibit such calls for political purposes. The Federal Communications Commission issued an opinion in 1998 finding that a state robocall prohibition could not be applied to interstate calls, and that the TCPA preempted all such state laws as applied to interstate calls. Case law addressing the issue is both scant and equivocal.

While it is clear that the TCPA does not preempt the application of the Arkansas statute with respect to intrastate calls (calls both originating and received in Arkansas), the issue with respect to interstate calls is unresolved.

Second, in January 2010 the Federal Election Commission issued a draft opinion that the Federal Election Campaign Act of 1971 (FECA) preempts numerous state laws and specifically finding that “the laws of Arkansas and Wyoming [the two states that have statutes with general political robocall prohibitions] purporting to prohibit pre-recorded telephone calls made by Federal political committees are preempted by FECA.” While the request for this opinion was later withdrawn, it appears clear to us that the FEC will take the position that all state statutes restricting or prohibiting robocalls related to federal elections cannot be enforced by the state.

Finally, while the Arkansas robocall statute has not yet faced a First Amendment challenge, given the nature of the speech prohibited, it can reasonably be anticipated that any effort to enforce the statute with respect to political robocalls is likely to face such a challenge.

Yes, fellow Arkansans — the First Amendment and a couple of federal laws may well protect a politicians right to set up a blasted machine to call us during dinner and beg for votes. Wonderful.

Frankly, I much prefer the campaign approach employed by Republican Jeremy Hutchinson. He knocked on my front door, visited with me a bit and asked if he could put a sign on my lawn.

Now, that’s some “down in the trenches” campaigning and is considerably more personal — and less lazy — then relying on an autodialer. Hutchinson, by the way, is running for Arkansas Senate, District 22.

We’re approaching some run-offs in June and then we’ve got the general election in November. It appears that robocalls are gaining in popularity, so the chances are good we’ve got to put up with them for a few more months.

About: Ethan C. Nobles:
Benton resident. Rogue journalist. Recovering attorney. Email = Ethan@FirstArkansasNews.net.

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