Court Monitor

Court Hangs Up on Indiana Ban on Robo-Calls

"Robo-calls" are automated, prerecorded phone calls to thousands of voters, providing them information about candidates. Robo-calls are often used to endorse a candidate or a position on a referendum just prior to an election.

The advantage of robo-calls is that they are cheap and efficient, and can be targeted to voters with a high degree of effectiveness. They level the playing field with the liberal media, enabling conservative groups to communicate messages directly to voters despite media attempts to present only a liberal point of view. Robo-calling is more helpful to conservative candidates than to liberals, because conservative voters have more stable phone numbers and conservative candidates lack the mainstream media for getting out their message.

Perhaps as a way to interfere with the conservative message, the State of Indiana banned most robo-calls. The Indiana Automated Dialing Machine Statute ("IADMS") exempts robo-calls by public school districts but otherwise prohibits robo-calls unless "[t]he subscriber has knowingly or voluntarily requested, consented to, permitted, or authorized receipt of the message; or [t]he message is immediately preceded by a live operator who obtains the subscriber's consent before the message is delivered.. Ind. Code 24-5-14-5(b)(1).

It is obviously impractical to obtain prior consent for such calls, or have a live operator speak on each call. The Indiana law essentially bans political robo-calling.

Patriotic Veterans, Inc., is an Illinois non-profit corporation seeking to make robo-calls to Indiana voters, but could not do so if this law remained in effect. The group sued in federal district court in Indiana to obtain an injunction against the Indiana law. Patriotic Veterans successfully argued that a federal law, the Telephone Consumer Protection Act (TCPA), preempts the Indiana law. 47 U.S.C. § 227. The Court agreed despite a lack of any provision in the TCPA saying that it preempted state law. Patriotic Veterans, Inc. v. Indiana ex rel. Zoeller, 2011 U.S. Dist. LEXIS 110787 (S.D. Ind. Sept. 27, 2011). In fact, the TCPA even has a "savings clause" that permits states to ban intrastate calling.

The "savings clause" in the federal TCPA states that "nothing in this section or in the regulations prescribed under this section shall preempt any State law that imposes more restrictive intrastate requirements or regulations on, or which prohibits . . . the use of automatic telephone dialing systems." U.S.C.A. § 227(f)(1).

The judge held that the Indiana IADMS law interferes with interstate calling (calls placed between two states), and not merely intrastate calling (calls placed within a state). The Indiana law thereby goes beyond what is allowed by the federal TCPA law, and thus the Indiana law is preempted and invalid.

The judge also found that the Indiana law regulates rather than prohibits automated calls, as in permitting automated calling in some circumstances (e.g., by school districts) but not in others (e.g., for political messages). This state regulation goes beyond what federal law allows. This decision could have a big impact in the 2012 Republican primary in Indiana, where robo-calling may be used to try to unseat U.S. Senator Richard Lugar.