You asked if any state, including New Hampshire, has a do-not-call law that applies to automated calls from political campaigns. If so, you wanted to know if the law has been challenged as a violation of the First Amendment right to free speech.

SUMMARY

At least 40 states have enacted telemarketing laws with do-not-call list requirements for consumers who do not want to receive telemarketing sales calls at home. Some of the laws predate passage of the Telephone Consumer Protection Act of 1991 (TCPA), which restricts sales calls to telephone subscribers' homes, and the Federal Communications Commission (FCC) and Federal Trade Commission's 2003 order establishing the national do-not-call registry. In fact, Florida implemented the first state registry in 1998.

Since the do-not-call laws in the vast majority of states attempt to regulate telemarketing sales calls, they contain exceptions for noncommercial calls, including those from political parties or political campaigns. However, several states, including Connecticut, have a provision in their telemarketing law that separately addresses automatic dialing-announcing devices (ADADs) or so-called “robo calls.” These devices select and dial telephone numbers and working alone or with other equipment disseminate a prerecorded or synthesized voice message to the telephone number called.

Most of the states with robo call laws restrict or prohibit commercial solicitation ADAD calls just as they do in their do-no-call laws. (Connecticut prohibits anyone from placing unsolicited ADAD calls for any commercial, business, or advertising purpose that continues the call after the customer hangs up (CGS § 16-256e).) But we found six states, Arkansas, Indiana, Minnesota, Montana, North Dakota, and Wyoming, with robo call laws broad enough to prohibit ADAD calls from political committees or campaigns. Indiana, Minnesota, and North Dakota laws have withstood constitutional challenges alleging free speech and commerce clause violations. In fact, the U.S. Supreme Court just recently (October 10, 2006) declined to hear an appeal by a Virginia political-polling firm challenging North Dakota's law that bars telemarketers from making prerecorded interstate calls to that state's residents. Courts have also held that Minnesota and North Dakota's statutes are not preempted by federal law.

Public criticism of the number of robo calls during recent elections has led to proposed legislation or calls for legislation in other states, including Connecticut. For example, bills (SB 207 and HB 5172) are pending to regulate robo calls in Michigan and Missouri's attorney general has asked that state's legislature to extend the do-not-call law to automated political calls.

Despite much publicity surrounding the attorney general's investigation of robo calls in New Hampshire during the 2006 elections, it appears that such calls are prohibited under the state's do-not-call statute only if the caller profits financially from placing the call.

STATE LAWS REGULATING ROBO CALLS

Arkansas, Indiana, Minnesota, Montana, North Dakota, and Wyoming have laws regulating robo calls. Most of these laws, in addition to restricting robo calls also prohibit calls during certain hours, prohibit calls to certain places (e.g., hospitals, fire departments, and law enforcement agencies), and create exceptions for automated calls preceded by a live operator. A couple of states require companies that make automated calls to register.

Table 1 shows the robo call provision in each state's law that appears applicable to calls from political parties or campaigns, citations to those provisions, and the penalties for violations. We have attached copies of each state's law for your information.

TABLE 1: ROBO CALL STATES

New Hampshire's law on robo calls may not apply to all political calls. Among other things, the law bans telemarketers from conducting telemarketing sales calls to any customer who has registered his name or telephone number with the do-not-call registry maintained by the Federal Trade Commission. Although “telemarketing sales calls” include calls made on behalf of a political campaign by a vendor using automatic dialing equipment, a “telemarketer” is defined as a person who makes such calls for financial profit or commercial purpose. “Commercial purpose” means the sale or offer for sale of goods or services (NH Code §§ 359-E:7 and: 8). Therefore, whether an automated political call is banned appears to depend on whether the person or company making the call stands to receive a financial profit from placing the call.

CONSTITUTIONALITY OF LAWS BANNING ROBO CALLS BY POLITICAL CAMPAIGNS

Laws regulating robo calls have been attacked on several different grounds. Lawsuits have been filed claiming that the TCPA preempts such laws. The federal law prohibits calls to a residential telephone line using an artificial or prerecorded voice without the recipient's prior express consent, unless the call is initiated for emergency purposes or exempted by a FCC rule or order (47 USC 227). The TCPA also has a savings clause that expressly states that it does not preempt any state law that imposes more restrictive “intrastate” requirements or regulations on or prohibits automatic telephone calls.

After the passage of the TCPA, the FCC adopted regulations exempting noncommercial calls from the act's general prohibition on automated calls. The regulations further require all artificial or prerecorded commercial telephone messages delivered by an automatic telephone dialing system to:

1. state clearly the identity of the business, individual, or other entity initiating the call at the beginning of the message, and

2. during or after the message, state clearly the telephone number (other than that of the autodialer or prerecorded message player which placed the call) or address of such business, other entity, or individual (47 CFR § 64.1200 (a)(ii) and (d)).

Robo call laws have also been attacked as a violation of the right to free speech and as an infringement on interstate commerce. Below are summaries are challenges to robo call laws that were upheld in Indiana, Minnesota, and North Dakota.

Indiana

Last month a federal judge ruled that Indiana could block a California-based group from making automated calls in Indiana that attacked a candidate for Congressional office. The case is currently on appeal to the Seventh Circuit Court of Appeals.

Indiana's attorney general filed the lawsuit against the company making the calls on the group's behalf after receiving 12 consumer complaints. The company making the calls, FreeEats.Com., counter sued claiming that Indiana's ban on automated calls is an unconstitutional restraint on free speech and interstate commerce.

The court held that the law serves a legitimate governmental interest by protecting and preserving residential privacy. The court rejected FreeEats.Com's claims, finding that Indiana's statute leaves open “ample alternative forms” of political speech, such as door-to-door campaigning, bulk mailing, leafleting, and posters and signs. The court also found that the statute does not prohibit companies from calling Indiana residents; it just prohibits automated calls (FreeEats.Com v. Indiana, 2006 WL 3025810 (SD Ind.)).

Minnesota

A candidate for governor brought suit alleging that Minnesota's statute was preempted by TCPA and violated the state constitution's rights to (1) free speech because it is overly broad and content-specific, and (2) equal protection.

The court held that TPCA did not preempt the state statute because (1) the law does not expressly preempt state law, (2) the law makes it clear that Congress did not intend to occupy the field of ADAD regulation, and (3) the Minnesota law is not in actual conflict with the TCPA. The court found that the differences between the two laws “are among those variations the FCC is directly authorized to consider: the inclusion of businesses in the locations to which ADAD calls are limited; and the exemption of calls that do not adversely affect privacy rights.”

The court held that Minnesota's law was not overbroad because it did not cause people who were not parties to the present lawsuit to refrain from constitutionally protected speech or expression.

Even though the law banning ADAD calls does not apply to all callers, the court held that the state is content-neutral because the exemption of certain calls was not based on the content of their message but rather on their relationship with the caller. This relationship, according to the court, implies the subscriber's consent to receive the caller's communication. Under the law, all ADAD calls are permissible if the person called gives his express or implied consent to receive the message.

Having determined that the Minnesota statute is content-neutral, the court applied the intermediate level of scrutiny to determine to determine if the law's time, place, and manner restrictions impose an incidental burden on speech. The court held that the government has a substantial interest in limiting the use of unsolicited, unconsented-to ADAD calls because the calls intrude upon the privacy and tranquility of the home and the efficiency of the workplace, and because the recipient has no opportunity to indicate the desire not to receive the calls. The court found the statute narrowly tailored to reach these interests because it does not prohibit an entire medium of expression. Live telephone calls, door-to-door distributions, bulk mailing, leafleting, and posters and signs are all permissible under the statute (Van Buren v. State of Minnesota, 59 F. 3d 1541 (1995)).

North Dakota

The North Dakota Supreme Court recently held that the state's ban on robo calls was not preempted by the TCPA. The defendants appealed to the U.S. Supreme Court; however, last month the Court refused to hear it.

FreeEats, a Virginia-based company, argued that political calls are not for commercial purposes and therefore are exempt under the TCPA. It also argued that the savings clause gives states the authority to regulate only intrastate automated, not interstate calls. The state argued that the TCPA allows states to pass more restrictive regulations on intrastate automated calls and to ban other automated calls.

Applying rules of statutory construction, the Court rejected FreeEats arguments and accepted those of the state (i.e., the TCPA allows states to (1) impose more restrictive intrastate requirements or regulations on certain automated calls and (2) prohibit the calls altogether) (State v. FreeEats.Com, Inc., 712 N.W. 2d 828 (2006)).

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