Antitrust Law Daily Wrap Up, PRIVACY—4th Cir.: Election consultants’ robocalls on election night violated Telephone Consumer Protection Act, (Aug 1, 2013)

By Jody Coultas, J.D.

The federal district court in Baltimore properly granted the State of Maryland summary judgment of its Telephone Consumer Protection Act (TCPA) claims against a political consultant and his company, the U.S. Court of Appeals in Richmond, Virginia, has held (State of Maryland v. Universal Elections, Inc., July 29, 2013, per curiam).

Julius Henson and his company, Universal Elections, Inc., were hired to assist the campaign of a Republican gubernatorial candidate. Universal composed and prepared a prerecorded telephone call, also known as a “robocall,” as part of the work for the campaign that was placed to over 100,000 phone numbers on election night. The message did not identify the campaign as a sponsor or a campaign phone number.

The district court held that the robocalls violated the TCPA. Universal appealed, arguing that the court erred in finding that the TCPA was not unconstitutional when applied to political robocalls, and that the record did support summary judgment in favor of the state.

The TCPA’s identity disclosure provisions are constitutional, according to the court. Universal argued that the TCPA section requiring that automated, prerecorded messages identify the entity sponsoring the phone call and provide that entity’s telephone number violated the First Amendment because it is a content-based burden on political speech that cannot withstand strict scrutiny. A content-neutral law that regulates speech is valid if it furthers an important or substantial governmental interest. The district court properly identified three important government interests furthered by the TCPA’s identity disclosure provision: protecting residential privacy; promoting disclosure to avoid misleading recipients of recorded calls; and promoting effective law enforcement. The TCPA’s restrictions do not burden substantially more speech than is necessary to protect those interests.

The district court did not err in granting the state summary judgment on the TCPA claims, according to the court. Universal argued that the complaint should have been dismissed because the state failed to allege that the election night robocall was received by any Maryland citizen. However, the TCPA does not require state attorneys general to identify particular phone call recipients by name. The court also found that Universal’s argument that Congress’ failure to pass the Robocall Privacy Act of 2006, 2007, and 2008 showed that Congress has chosen not to regulate political robocalls was unavailing. There was also no authority to support the argument that Robodial.org, the autodialing company that placed all the phone calls at Universal’s direction, must bear the responsibility for violating the TCPA.

The district court’s denial of Universal’s motion to stay was appropriate, according to the court. Judicial authority held that stays are generally not granted before indictments have issued. Here, the motion was devoid of any facts or legal argument.

Finally, the uncontroverted facts established that Universal created and distributed the election night robocall, which failed to comport with the TCPA requirements. This evidence was sufficient to establish liability under the TCPA, according to the court.

The case is No. 12-1791.

Attorneys: William D. Gruhn for the State of Maryland. Edward Smith, Jr. for Universal Elections, Inc.

Companies: Universal Elections, Inc.

Cases: ConsumerProtection Privacy MarylandNews NorthCarolinaNews SouthCarolinaNews VirginiaNews WestVirginiaNews