As readers will no doubt be aware, Swiftboat mastermind Bob Perry funded the “Economic Freedom Fund.” In an effort to aid Mike Sodrel’s campaign in Indiana’s 9th District, that organization went out and hired a company by the name of FreeEats.com Inc. to have its computers make robocalls playing pre-recorded messages attacking Sodrel’s challenger, Baron Hill.
Trouble is, this violates Indiana law. IC 24-5-14 prohibits use of an “automatic dialing-announcing device” unless the recorded message to be played is immediately preceded by a live operator who obtains the phone customer’s consent before the message is delivered. This, of course, defeats the purpose of robocalls – they want to be able to push a button and have their computers bombard as many Hoosiers as possible with their recordings, not have to pay an actual live person to make the calls, and certainly they don’t want to give the target an opportunity to say “no.”
Enter Attorney General Steve Carter. To his credit, Carter has been extremely active in trying to protect Hoosiers from intrusions via their telephones. He understands that few things get citizens angrier than having their phone ring, particularly at inconvenient times, only to have it be a telemarketer or, in this case even worse, a *$#@ computer droning on about how bad Baron Hill is or how great Mike Sodrel is. So, seeking to enforce the state ban on robocalls, on September 18, 2006, the AG’s office filed a civil enforcement action against Perry’s “Electronic Freedom Fund” and John Does 1-10 in the Circuit Court of Brown County under Cause Number 07C01-0609-MI-425.
Recognizing that, sooner or later, it would fill one of those “John Doe” slots, Free Eats.com d/b/a ccAdvertising filed a Complaint (pdf) in the Southern District of Indiana seeking a declaration that the state law prohibiting robocalls is pre-empted by federal law (specifically 47 USC 227) and/or unconstitutional and also seeking an injunction against the Attorney General attempting to enforce the act. The Attorney General filed its motion seeking to dismiss the federal action on the grounds of an ongoing state action involving the same matter in which Free Eats is free to seek the same relief.
I haven’t read the opinion since my Westlaw subscription doesn’t extend that far, but it looks like the 8th Circuit considered and rejected the preemption argument. The preemption argument basically says that the federal government has acted in this area and, by doing so, is exercising exclusive control over the subject matter and has prevented the states from acting on their own. Under the Supremacy Clause of the U.S. Constitution, the federal law would govern. In Van Bergen v. State of Minnesota, 59 F3d 1541 (8th Cir. 1995), the court found that a Minnesota statute regulating use of telephone automatic dialing-announcing devices was not preempted by the federal Telephone Consumer Protection Act (TCPA) because 1) the Act did not expressly preempt statute; 2) the
Act carried no implication that Congress intended to preempt state law; 3) a Congressional finding suggested that Act was intended not to supplant state law but to provide interstitial law preventing evasion of state law by calling across state lines, and 4) the statute was not in actual conflict with the Act.
Legalities aside, this whole robo-calling approach, particularly one receiving as much publicity as this one, is likely to hurt the candidates they’re designed to support — in this case Mike Sodrel. As a voter, would you be more or less likely to vote for a candidate using computers to call you during dinner or whatever just to play you a pre-recorded message; then running to a federal judge seeking to strike down state laws designed to protect you from such intrusion?
Clearly this is hurting Sodrel, just in forcing him to comment or duck commenting. It takes away from messaging, etc.
527 are hurting the “democratic” process in my opinion – sounds cliche, but I’ve seen it first hand. The fallout from this has resulted in traditional democtratic efforts (live calls to supporters and independants) being hampered.
When I’ve made calls, people are irritated off the bat. Even when I call supporters/supportive Indys. They appologize for being initially hostile as theyve recieved junk calls in the past, often decieving ones. People are on edge when theyre phone rings now.
Makes me feel bad for calling at times. Phone banking has been tougher, but I prefer the exercise and eye contact through door-to-door canvassing. Thats the way it should be anyway.