Communications law in the United States is a little peculiar at times. If I buy time on for an advertisement on television or radio to reach thousands of people over the public airwaves, I have to abide by one set of rules. If. If I use an auto-dialer to reach thousands of people in their homes over the telephone (“robocalls”), I abide by a different set of rules. Only the former is seen as “broadcast.”

That’s the law; they’ve developed at different times for different purposes. But the capacity for abuse is the same in both.

One possible rationalization for the difference is that a legitimate business would not last very long if they solely marketed through robocalls; the public would quickly get irritated. But a political campaign lasts for a comparatively short time; robocalls are a cheap investment. Anonymous robocalls are a cheap investment and a dirty trick; therein lay the capability for abuse. And they’re not illegal across the country.

Free speech absolutists have waxed endlessly about the role of anonymous advocacy in the formation of the republic (e.g., The Federalist Papers). But it is anonymous political campaign speech which has been most vigorously curtailed, and reliably defended by the courts. Statements which are not injurious in everyday discourse may be fatally damaging on the campaign trail (recalling the old line about “my opponent is an admitted thespian!”). When Oliver Wendell Holes, Jr. introduced the defense of free speech through the marketplace of ideas in 1919, he based it on the observation that “time has upset many fighting faiths.” But time is what campaigns don’t have. Anonymous, untraceable speech multiplies the potential harm.

A major loophole was closed in 2002, when the Bipartisan Campaign Reform Act (“McCain-Feingold”) was passed. Title 47, Section 315 now requires political campaigns to vocally affirm the sponsor of the ads on radio and television (“I’m ______ and I approve this message” became a familiar refrain beginning with the 2004 campaign.)

Yet no such rule exists for robocalls on the federal level (though many states ban the practice.) The irony is stunning – it was Senator John McCain who was a victim to anonymous telephone campaign masquerading as a poll in the 2000 South Carolina primary. A similar act of sabotage was delivered a couple of weeks ago when voters in Nevada received calls from an anonymous pre-recorded voice warning them about “Barack Hussein Obama.” (For obvious reasons, only Senator Obama’s opponents emphasize his middle name.) Who made these calls – the Clinton campaign? Or GOP operatives? Nobody will ever know.

The Reno Gazette-Journal featured an article on political phone solicitations leading up to the primary, and produced an explanation why they were still common. “Rosemary Kimball, a spokeswoman for the Federal Communication Commission’s Consumer and Governmental Affairs Bureau, said when Congress passed the Telephone Consumer Protection Act of 1991 it exempted political calls.”

Let’s turn to that 1991 act, which was enacted into Section 227 of Title 47:

The Commission shall prescribe technical and procedural standards for systems that are used to transmit any artificial or prerecorded voice message via telephone. Such standards shall require that—
(A) all artificial or prerecorded telephone messages
(i) shall, at the beginning of the message, state clearly the identity of the business, individual, or other entity initiating the call, and
(ii) shall, during or after the message, state clearly the telephone number or address of such business, other entity, or individual; and
(B) any such system will automatically release the called party’s line within 5 seconds of the time notification is transmitted to the system that the called party has hung up, to allow the called party’s line to be used to make or receive other calls.

Sounds fair enough, except Congress enabled the FCC to add their own exemptions:

(2) Regulations; exemptions and other provisions
The Commission shall prescribe regulations to implement the requirements of this subsection. In implementing the requirements of this subsection, the Commission—
(A) shall consider prescribing regulations to allow businesses to avoid receiving calls made using an artificial or prerecorded voice to which they have not given their prior express consent;
(B) may, by rule or order, exempt from the requirements of paragraph (1)(B) of this subsection, subject to such conditions as the Commission may prescribe—
(i) calls that are not made for a commercial purpose

As a matter of course, the Congress delegates the technical matters of laws to enforcing agency; these are devils of details that a legislative body needn’t burden itself with. But in the case Congress punted a matter of policy to the agency. This probably happens more than the common citizen realizes, but this is just a case where the common citizen can form a reasonable opinion. One would be hard-pressed to find a common citizen who would agree that anonymous political robocalls are a good thing. How such a critical decision was outsourced to the FCC befuddles common sense.

So what did the FCC rule? As I noted a couple of weeks ago, the FCC has a peculiar way of indexing their documents; they’re not the easiest to search. It turns out we are looking for rule 64.1200; this is easier to find on advocacy sites than on the FCC site. Here is the relevant text:

(a) No person or entity may:
(2) Initiate any telephone call to any residential line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call,
(ii) Is not made for a commercial purpose

A political campaign call is not made for a commercial purposes. Thus it is exempt from FCC regulations.

These FCC regulations originally went into effect in December 1992. A month ahead of the change, the Times assessed the legislation and its impact on the autodialer business (NYT, 11/5/1992). The FCC’s cynically observed that the law was good because “people on all sides don’t like it.” The staff of the bill’s co-sponsor Senator E.F. “Fritz” Hollings, was less sanguine, finding it riddled with loopholes. The Times added that “the law’s backers are thinking of requesting changes in the rules or writing new legislation but that no specific course of action has been set.”

Fifteen years on, there is no federal law or regulation barring anonymous campaign robocalls, and civic democracy hobbles onwards.

On February 12, 2008, Sen. Feinstein introduced S.2624, to require the initiator of a robocall to identify themselves at the start of a call (at a penalty of $1,000 per violation). It sits in committee– along with Sen. Kohl’s weekend voting act and other sensible proposals.