Civil Rights – Robocalls Violated Federal Consumer Law

State of Maryland, Office of the AG v. Universal Elections Inc. (Lawyers Weekly No. 13-01-0877, 22 pp.) (Norton, D.J.) No. 12-1791, July 29, 2013 (Published Aug. 28, 2013) USDC at Baltimore, Md. (Blake, J.) 4^th Cir.

Holding: A political consultant and his company violated the Telephone Consumer Protection Act by directing placement of over 100,000 election-eve robocalls that failed to identify a 2010 Maryland gubernatorial candidate as the sponsoring campaign and did not include the campaign phone number; the 4^th Circuit upholds summary judgment for the Maryland attorney general in this action to enforce the federal statute.

The TCPA and its regulations require that automated, prerecorded messages identify the entity sponsoring the phone call and provide the entity’s telephone number. This identity disclosure requirement applies regardless of the content of the message that is relayed to the recipient. The district court properly determined the TCPA is a content-neutral law to which intermediate scrutiny must be applied.

To pass constitutional muster, the governmental restriction cannot burden substantially more speech than is necessary to further the government’s legitimate interests. There are at least 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 district court correctly identified these three important government interests, found that the Act is a content-neutral regulation that furthers important government interests unrelated to free expression, and held that the TCPA’s restrictions do not burden substantially more speech than is necessary to protect these interests. We affirm the district court finding that the TCPA’s identity disclosure provisions are constitutional.

Contrary to appellants’ assertion, the TCPA does not require state attorneys general to identify particular phone call recipients by name. Nor does the fact that Congress has not passed legislation that specifically addressed political robocalls lessen the scope and applicability of the TCPA. The statute also does not require that multiple calls be made to the same person, and can cover a single phone call to multiple recipients, as occurred here. The statute covers a company such as defendants, who directed that an autodialing company place the calls.

Defendants make a cursory argument that the complaint should have been dismissed because Robodial.org was not joined as a party under Fed. R. Civ. P. 19. The failure of the state to join Robodial.org as a defendant did not affect the district court’s ability to adjudicate the claims raised against the defendants here.

Finally, the district court did not err in refusing to stay these proceedings pending resolution of partially parallel criminal proceedings. This decision is in keeping with the bulk of judicial authority, which holds that stays are generally not granted before indictments have issued.

Summary judgment for the state affirmed.