Robocalls: What’s legal? What’s not?

Categories: Campaign Advice • Published on August 30, 2012 at 8:11 PM

RobocallsLast week we discussed recent changes to robocalls in VAN.  While everyone may despise getting robocalls, they have become a part of modern-day political campaigns and need to be understood.  I have put together the following article as a primer to help answer some common questions about robocalls and the legalities that surround them.  I should stress that this article is based on Texas laws and regulations, so not all information below may not apply to performing robocalls in other states.  I should state for disclaimer purposes that while I work with political campaigns, I am not a lawyer and it is always a good idea to seek your own legal counsel.

What is a Robocall?  What are they good for?

A robocall is when an automated system calls a series of phone numbers and leaves a pre-recorded message to either the live individual or answering machine that answers the phone.  Robocalls have become so overused by campaigns that they have only a very narrow usefulness at best.  In my opinion, the more effective robocalls are ones that tell voters their polling location or perhaps mention an important event near that person’s home.  Robocalls that try to persuade voters to vote for or against a candidate tend to be very ineffective or even have the opposite intended result due to a voter’s annoyance of getting these calls.  Endorsement calls are ok from celebrities or elected officials, but they still need to have something substantive in them other than “Vote for Candidate X.”

Why are robocalls used?

Robocalls are cheap.  Mail and TV tend to be the MOST expensive item on any campaign budget.  Robocalls are a very cheap way to get a specific message out to a lot of voters quickly at very little cost.  Most vendors will charge around $0.03 or less per phone dialed for a 30 second robocall message.  Under VAN’s new pricing of robocalls using their system, a $150 30-second message robocall would dial 11,538 phone numbers.  In an extremely close race, even if 1% of those called get out and vote could mean the difference between winning and losing.

Do I need to add “Political advertisement paid for?”

For non-federal Texas races, a disclaimer is not required.  According to the Texas Ethics Commission, robocalls do not fall under the category of a political advertisement and are considered to be a form of campaign communication (see Election Code 251.001 17).  Since robocalls are not considered political advertising, they do not require the statement “Political advertisement paid for by X” at the end of the message (see Election Code 255.001).  However, there are some regulations from the Texas Public Utility Commission mentioned later in this article that need to be followed. For federal races (President, Senate, or Congress), the Federal Election Commission does require a disclaimer depending on who is paying for and authorizing the robocall. In each case, the disclaimer must not be difficult to hear and cannot be placed where it can easily be overlooked.

  • If authorized and financed by the candidate’s campaign, then the disclaimer must say “Paid for by (Campaign Name).”
  • If authorized by the candidate’s campaign, but paid for by a third party, then the disclaimer must say “Paid for by (payee’s name) and authorized by (Campaign Name).”
  • If not authorized by the candidate, then the disclaimer must say “Paid for by (payee’s name) and not authorized by any candidate or candidate’s committee.”

The FEC has very good documentation on their website, Special Notices on Political Ads and Solicitations, regarding their requirements for disclaimers.  It is highly recommended that a campaign review this and other documents on the FEC’s website to ensure there have been no recent changes to FEC regulations.

So what are the other requirements of a robocall?

The Texas Public Utility Commission has laid out the following rules that need to be followed when making a robocall:

  • Within the first 30 seconds of the call, the message must clearly state the nature of the call, the identity of the candidate/campaign initiating the call, and the telephone number
  • Calls cannot be made before 9:00 AM or after 9:00 PM on Monday through Saturday
  • Calls made on Sunday must be between noon to 9:00 PM
  • Caller ID cannot be suppressed or show “No ID”

If someone contacts the campaign and requests to be removed from their call list, the campaign is obligated to place that number is some form of Do No Call list so they will not be contacted again.  This can be an actual Do Not Call list that is cross-referenced against future calls, or simply deleting the phone number from the database; whatever method that ensures the phone number is not dialed again.  Many online robocall vendors have a client-specific Do No Call database the user can maintain that will automatically remove numbers entered from any future calls.

What about the National Do Not Call List?

Political robocalls are exempt from having to purge numbers found in the National Do Not Call list from your robocall.

Do I or the robocall vendor need an ADAD permit?

This is a grey area.  Robocalls are sent from what are called ADAD devices, which stands for Automatic Dial Announcing Devices.  The Texas Public Utility Commission (PUC) requires that anyone operating an ADAD device for solicitation purposes needs to have an ADAD permit.  The staff that I spoke with at the PUC state that they have no definitive case that explicitly determines whether a political campaign’s robocall message is a solicitation or falls under the protection of political speech.  Many online or out-of-state robocall vendors do not get ADAD permits.  Their reasoning is that they only provide a service to the user, and it is the user’s responsibility to get the ADAD permit in order to operate their service, if required. Some individuals have tried to argue that a robocall is “soliciting a vote” from the recipient, and that requires an ADAD permit to operate.  While others contend that a robocall message from a political campaign falls under free speech and is not a solicitation.  The argument that robocalls are political speech is reinforced by the Texas Ethics Commission who considers robocalls to be a campaign communication rather than a political advertisement (solicitation).

Do you have any examples of robocall messages?

The following is an example of a robocall message that I used in a campaign.  This message was recorded by the candidate.  We had them record an individual message for each polling location, and then sent the message to targeted voters in precincts associated with those locations.  It took the candidate about 1 hour to record messages for all 34 Election Day polling locations in their district. “Hi, this is (name removed).  This Saturday is Election Day for our local city elections.  Polls will be open from 7:00 AM to 7:00 PM, and you can vote at (Insert name of precinct polling location).  If you have any questions, please feel free to call my campaign at (removed) or visit my website (removed).  I look forward to your vote and thank you for your time.” An individualized recorded message like this might not be feasible for a large campaign, such as countywide or statewide races.  However, you can make the message a little more generic if need be.  It should be noted that polling locations are typically known well in advance.  So these recordings could be setup a month or more before Election Day.  Once the recordings have been made, the creation of the robocalls themselves can be done by campaign staff or consultant while candidate, staff, and volunteers work their other GOTV programs. For a large countywide or statewide campaign, I have used a similar message that has a computer read the polling location rather than have the candidate record a message for each individual location.  The computer script would read each voter’s polling location from the same data file that holds their phone number.  If you used a similar message, the script may change below: Candidate recording: “Hi, this is (name removed).  This Tuesday is Election Day!  Polls will be open from 7:00 AM to 7:00 PM.  If you have any questions, please feel free to call my campaign at (removed) or visit my website (removed).  I look forward to your vote and thank you for your time.”   Following dynamic message: ”Your polling location is (insert name of precinct polling location) located at (insert street address) in (city).” It should be noted that VAN does not have the ability to create dynamic scripts like the above example for their robocalls.  Using a computer script to dictate which message gets played under certain conditions will also cost more per call made.  If you have any questions about robocalls, robosurveys, and predictive dialing, please feel free to contact me.  Information is always free.  It is when you want me to do it for you that I start charging.