What Political Callers and Texters Need to Know about the TCPA

As Election Day draws near, and political calls and texts pick up, we thought a reminder of the Telephone Consumer Protection Act (TCPA) rules, along with an update on pending TCPA matters before the FCC, would be helpful.

First, the basics.  As the FCC explains on its webpage dedicated to Political Campaign Robocalls & Robotexts:

Political campaign-related autodialed or prerecorded voice calls (including autodialed live calls, prerecorded voice messages, and text messages) are:

• Not allowed to cell phones, pagers, or other mobile devices without the called party's prior express consent.

• Not allowed to protected phone lines such as emergency or toll-free lines, or lines serving hospitals or similar facilities, unless made with the called party's prior express consent.

• Allowed when made to landline telephones, even without prior express consent.

All prerecorded voice message calls, campaign-related and otherwise, must include certain identification information:

• the identity of the business, individual, or other entity initiating the call (and if a business or corporate entity, the entity's official business name) must be stated clearly at the beginning of the message; and

• the telephone number of the calling party must be provided either during or after the message.

Robotexts are text messages generated through autodialing. Under the TCPA, these are considered a type of call and fall under all the robocall rules.  As text messages generally go to mobile phones, they require the called party's prior express consent if they are generated using autodialing. See Political Campaign Robocalls & Robotexts, FCC.gov.

While seemingly straight-forward, these rules are packed with nuance.  For example, the term “prior express consent” has been interpreted by the Commission on a number of occasions.  FCC precedent holds that the term encompasses a person’s provision of his or her phone number, without limiting instructions.  Practically speaking, this means that a campaign generally can place political robocalls and robotexts with automated equipment to wireless phone numbers that voters and volunteers have given directly to the campaign, but generally cannot place such calls or texts to wireless phone numbers that come from other sources.

Second, campaigns and other political callers/texters should understand that the TCPA rules are currently in flux.  For example, there is a petition pending seeking Commission input on whether popular peer-to-peer calling platforms are subject to TCPA restrictions, and the FCC has an open proceeding into how to define one of the terms that triggers TCPA restrictions—automatic telephone dialing system or autodialer.  While the FCC has received public comments on both of these matters—and in the case of the open proceeding to define autodialer, on multiple occasions—it has yet to take action on the issues. 

In election years past, we have seen TCPA suits brought against campaigns ranging from the local level races all the way to Presidential races.  This year is no different, with the TCPA already making headlines.  Before setting up a predictive dialer or placing robocalls/texts—or hiring a vendor to do the same—it is important for campaigns to know and understand the associated risks.