During an election year, it feels like a day doesn’t go by without a call or text from a political campaign. Text messages have become an increasingly important part of outreach strategy for campaigns. In the 2022 election cycle, Americans received 15 billion political text messages, with those numbers spiking in October during the lead-up to voting day in November. This isn’t to say phone calls have become obsolete—Americans still received 384 million political calls in 2022. That’s approximately 39 texts for every political call in 2022.
The Telephone Consumer Protection Act (TCPA) plays a significant role in governing how campaigns are legally allowed to communicate with potential voters through political robocalls and robotexts. In this blog, we’ll outline the TCPA and how it regulates political campaigns and the consequences of non-compliance.
The Telephone Consumer Protection Act and Its Rules Surrounding Political Outreach
The Telephone Consumer Protection Act (TCPA) was enacted in 1991 by Congress to combat unwanted telephone marketing calls by placing restrictions on the use of an automated telephone dialing system (ATDS), otherwise known as an autodialer, as well as maintaining and adhering to Do Not Call (DNC) lists.
The ATDS plays an important role in telemarketing outreach. Under the TCPA, if your organization is using an ATDS or a telephone system with the capacity to be an ATDS, you must obtain prior express written consent to make robocalls and robotexts to residential phone numbers, and prior express consent for informational calls and text messages to these numbers.
The TCPA also prohibits calling wireless phone numbers using an ATDS unless the caller has obtained prior express consent, or if the call is being placed for emergency purposes. TCPA wireless restrictions apply to all wireless numbers, regardless of whether the number is a residential or business number.
Under the TCPA, it is prohibited to contact someone who has registered their phone number on a DNC list. The federal government maintains the National Do Not Call List, and 11 states own and operate their own DNC registries.
Political Robocall Compliance
When it comes to political messages, the rules and regulations surrounding outreach are more nuanced. Campaign calls are exempt from the rules under the National Do Not Call Registry. So, even if you registered your number on the National DNC list you may still receive calls. Robocalls are permitted to landlines without prior consent but are limited to no more than three calls within any consecutive 30-day period.
If you are using artificial or prerecorded voice messages, you must include certain information:
- The identity of the individual (or whoever is initiating the call), must be clearly stated at the beginning of the prerecorded message
- If the calling party is a business, the official business name must be stated clearly at the beginning of the message
- The telephone number of the calling party either during or after the message as well
However, the rules for calling landlines vs. wireless phones are different. Political campaign-related autodialed or prerecorded voice calls, including autodialed live calls, autodialed texts, and prerecorded voice messages, cannot be made to cell phones or other mobile devices without the called party’s prior express consent.
Political Robotext Compliance
Robotexts are text messages generated through autodialing or using an ATDS. Political text messages sent to a mobile phone using an autodialer should be treated the same as robocalls to wireless numbers. They require prior express consent. However, messages sent manually can be sent without prior express consent.
Artificially Intelligent-Generated Messages
Artificially Intelligent (AI) generated voices are considered pre-recorded messages under the TCPA and therefore require prior express consent before being used in outreach campaigns.
However, as of February 8, 2024, AI-generated robocalls were made illegal by the Federal Communications Commission following an incident where political consultant Steve Kramer was found to have made “illegal robocalls made using deepfake, AI-generated voice cloning technology and caller ID spoofing to spread election misinformation” in the New Hampshire presidential primary election earlier this year. He was fined 6 million dollars by the FCC.
Earlier this year Missouri introduced legislation that prohibits any person or entity from distributing a synthetic message of any candidate or party for elective office appearing on a state or local ballot within 90 days of an election. The status of this bill is still pending but be aware that legislation regarding the use of Artificial Intelligence in political campaigns is an increasingly hot topic.
Consequences of Non-Compliance
TCPA compliance for political campaigns is important because these campaigns face the same consequences for violating the TPCA as other organizations. Penalties range from $500 per call if the caller unknowingly violated the TCPA to $1500 per call if the caller is found to have knowingly or willingly violated the TCPA.
However, manually dialed calls or texts are not subject to TCPA violations. You may still opt-out of these messages, but these types of calls or texts are not regulated under the TCPA.
Political campaigns must also comply with state-level telemarketing legislation as well. At the state level, political outreach laws may vary. The definition of prior express written consent, rules surrounding AI outreach, and more all vary by state so it’s important to be aware of state-level legislation before reaching out.
Learn More About TCPA Compliance
If you’re interested in learning more about the complicated nuances of TCPA and DNC compliance, check out our new guide “Advanced Contact Compliance: Going Beyond TCPA and DNC Basics.”
If you utilize phone calls or text messages as part of your outreach strategy and are interested in learning more about how to remain compliant, contact us today.