Using an auto dialer today is a tricky prospect. While automatic dialing solutions are primarily addressed by federal law in the Telephone Consumer Protection Act (TCPA), a number of states have their own rules. In cases where these rules conflict, trouble has arisen and often resulted in legal tussles.
The TCPA allows auto dialers to be used rather freely for non-commercial purposes such as not-for-profit organizations calling for charitable purposes, marketing or research companies calling to do surveys, or political campaign calls. These organizations do not need to obey “do not call” list rules, and they can use auto dialers and automated outbound calling (“robocalls”) without receiving permission from the called party first.
The State of Indiana, however, has stricter rules when it comes to automated messages and auto-dialers, explicitly stating exemptions only for calls by employers to employees or schools to parents. There is no stated exemption in the state law for calls made for political purposes.
This confusion has led directly to what is expected to be a landmark court case, Patriotic Veterans, Inc. v. Indiana, according to Jason Stiehl of the law firm Seyfarth Shaw LLP. Patriotic Veterans is a not-for-profit group that makes outbound calls to inform voters of the positions taken by political candidates on issues of interest to veterans. The group is hoping to achieve a declaratory ruling that Indiana’s law covering auto dialers is either preempted by the TCPA or in violation of the First Amendment. Under the rules laid out by the TCPA, federal law exempts automated phone calls “not made for a commercial purpose.” Additionally, Patriotic Veterans, Inc. is located in Illinois, not Indiana, so the group is arguing that the State of Indiana has no jurisdiction to regulate interstate communications.
While a district court ultimately granted an injunction against the enforcement of the Indiana auto dialer law, the Seventh Circuit Court of Appeals reversed that ruling, noting (among other things) that the TCPA does not expressly preempt state statutes regulating interstate calls and “the fact a state has more stringent regulations than a federal law does not constitute conflict preemption.”
Ultimately, the Seventh Circuit remanded the matter back to the district court for an analysis of whether Indiana’s auto dialer law violates the free speech rights protected by the First Amendment.
So while the issue is not yet settled, the outcome will have implications for every company using an auto dialer for non-profit reasons.
Edited by Blaise McNamee