Tippecanoe and the TCPA, Too, Two

Following up on our March 9 reminder, and just in time for Super Tuesday II, the Federal Communications Commission’s Enforcement Bureau issued an Enforcement Advisory on March 14 titled, “Biennial Reminder for Political Campaigns about Robocall and Text Abuse.” The advisory (similar to past advisories) is a reminder to “political campaigns and calling services that there are clear limits on the use of autodialed calls or texts (known as ‘robocalls’) and prerecorded voice calls.” The advisory summarizes the TCPA’s regulations on (1) calls to cell phones, (2) calls to landlines, (3) identification requirements for prerecorded voice messages, and (4) “line seizure” restrictions. The advisory also includes an “At a Glance” summary of regulations as applied to Political Calls and a series of Frequently Asked Questions with contact information for the Enforcement Bureau for those who have unanswered questions or lingering concerns.

While it is typically private plaintiffs who file lawsuits seeking to take advantage of the $500-$1500 in statutory damages available per violation, the advisory also highlights the Commission’s own big stick, noting that “failure to comply with the relevant sections of the TCPA and corresponding rules may subject [violators] to enforcement action, including monetary forfeitures as high as $16,000 per violation for any person” who is not “a broadcast station licensee, cable operator, common carrier, or applicant for any broadcast station, cable operator, or common carrier license issued by the Commission.” (emphasis added).

In May 2014, for example, the Commission invoked that very authority to fine Dialing Services, LLC, $2,944,000 for 184 calls made on behalf of political campaigns and candidates. That fine followed a March 2013 citation, which found that Dialing Services had made more than 4.7 million calls to cellular phones during the 2012 election cycle in violation of the TCPA and warned that further violations would result in Commission action. (The Commission’s Press Release and Notice of Apparent Liability for Forfeiture are available here and here.) The Commission did not,however, chose not to pursue any enforcement action against the campaigns that may have used Dialing Services (which evidently included the Romney 2012 campaign).

Moreover, as we noted previously, certain states have their own calling restrictions which may be more restrictive than the TCPA. Candidates and their supporters should ensure compliance with those restrictions as well before embarking on a calling campaign.

Justin O. Kay

About the Author: Justin O. Kay

Justin Kay advises and defends business clients regarding their interactions and communications with consumers. He appears regularly on behalf of clients before federal and state courts, federal agencies and independent self-regulatory bodies, such as the National Advertising Division of the Better Business Bureau. Justin’s practice focuses on defending clients in the growing number of complex class actions arising under federal and state consumer protection and privacy laws such as the federal Telephone Consumer Protection Act, the Illinois Biometric Information Privacy Act and the California Consumer Privacy Act. He is a deputy leader of the litigation practice group.

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