Robocalls: Are they legal? UPDATE | Arkansas Blog

Monday, May 10, 2010

Robocalls: Are they legal? UPDATE

Posted By on Mon, May 10, 2010 at 4:39 PM

Robocalls have begun, I understand, including some lowdown stuff in one judicial race. Such calls have defied tracing in the past, though they're clearly paid political communication intended to affect election outcomes.

But here's something a friend just discovered: Are the calls legal? Read the state statute (on the jump) and you tell me:

UPDATE: Coincidentally, the state attorney general today settled a lawsuit over robocalls used for purely commercial purposes. Jason Tolbert reports on that here and reports an ambiguous response from the attorney general's office on political robocalls. A spokesman acknowledges the state law but notes a belief that federal law pre-empts it. I can see a potential constitutional problems in limiting political speech through this statute. But I wonder: If we have a law, shouldn't we enforce it until it's struck down or removed from the books? Mr. A.G.?

UPDATE II: A political consultant who uses robocalls says they are clearly protected by federal law, but disclosure of sponsor is required in federal races. I've been hearing about calls from unidentified sources. That's the part that chaps me, not the calls themselves. Who's paying for them?

5-63-204. Automated telephone solicitation.
(a) (1) It is unlawful for any person to use a telephone for the purpose of offering any
goods or services for sale, or for conveying information regarding any goods or services for the purpose of soliciting the sale or purchase of the goods or services, or for soliciting information, gathering data, or for any other purpose in connection with a political campaign when the use involves an automated system for the selection and dialing of telephone numbers and the playing of recorded messages when a message is completed to the called number.

(2) However, nothing in this section prohibits the use of:
(A) A telephone involving an automated system for the selection and
dialing of telephone numbers and the play of recorded messages to:
(i) Inform the purchaser of the goods or services concerning
receipt and availability of the goods or services for delivery to the purchaser; or
(ii) Convey information concerning any delay or pertinent
information about the current status of any purchase order previously made; or
(B) An automated telephone system with a recorded message when the
call is made or message given solely in response to a call initiated by the person to which the automatic call or recorded message is directed.
(b) Any person who violates any provision of this section upon conviction is guilty of a Class B misdemeanor and shall be punished accordingly.
(c) (1) The Attorney General, a prosecuting attorney, any law enforcement officer, or
any telephone company serving an area from which automated telephone calls are made may seek injunctive relief to enforce the provision of this section.
(2) If a civil action is filed pursuant to this section, the prevailing party is entitled
to a reasonable attorney's fee and court costs.

History. Acts 1981, No. 947, §§ 1-3; A.S.A. 1947, §§ 41-4162 — 41-4164.

Case Notes
Cited: Potomac Leasing Co. v. Vitality Ctrs., Inc., 290 Ark. 265, 718 S.W.2d 928 (1986).

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