Unions and Prerecorded Calls: Constitutionally Protected Speech and Abusive Dialing

Summary

This article examines how statutes regulating prerecorded calls passed at the federal or state level twenty or more years ago affect, and sometimes clash with, the speech rights of labor unions.

Article

Unions and Prerecorded Calls

Where Does the Border Lie Between Constitutionally Protected Speech and Legitimate Concerns Regarding Abusive Dialing?

Web-based interfaces have allowed many entities which previously were not aware of, or could not afford, their own dialer to quickly access technology allowing them to send prerecorded messages to thousands of numbers at very low cost.

While some uses of this technology have been abusive, many uses are friendly to consumers, e.g. flight notifications, credit card fraud alerts, etc.  Legitimate calls also include messages protected at the highest level by the free speech guarantee of the United States Constitution.  Included in this latter category are calls by unions engaged in advocacy or political activity.

In this article, I will examine how statutes regulating prerecorded calls passed at the federal or state level twenty or more years ago affect, and sometimes clash with, the speech rights of labor unions.

Federal Law

First, federal statutes affect calls in all states.

There are two federal sets of rules (consisting of a statute and its accompanying regulations) regulating prerecorded calls, the FTC’s Telemarketing Sales Rule (TSR) and the FCC’s Telephone Consumer Protection Act (TCPA).

The TSR bars prerecorded calls in most circumstances but does not apply to calls which do not solicit the sale of goods or services or a charitable donation.  Thus, any advocacy of a prerecorded call which does not involve a solicitation for a charitable donation or for the sale of goods or services would not be regulated by the TSR.

Calls seeking political donations are also exempt from the rule.  Thus, even some donation calls, depending on the purpose of the donation, would be exempt from the FTC’s TSR restrictions.

However, if the TSR restrictions do apply, most prerecorded calls would be prohibited absent the express written signed consent of the recipient, and even these calls would need to include an opt-out disclosure.  The FTC lacks jurisdiction over nonprofit organizations, but the FTC could attempt to apply the rules to vendors hired by a nonprofit union, if those rules were otherwise applicable.  The FCC’s rules implementing the TCPA allow prerecorded calls by or on behalf of nonprofit organizations, including unions, but some important technical aspects of the statutes still apply. Calls are prohibited to cell phones without the “express consent” of the recipient.  While express consent for this purpose need not be in writing, it would be very important to examine the source of numbers called to evaluate whether the union had “express consent” for this purpose to place prerecorded calls.

Your attorney should review the TCPA’s restrictions on the use of automated telephone equipment to ensure compliance with those restrictions because failure to do so could result in damages of $500 per call.

State Law

Next, you need to review state law in both states from which the calls are sent and received.  The above federal statutes do not prevent, i.e. preempt, application of state law to these calls although other federal laws might, such as those administered by the National Labor Relations Board.  You should examine this question with your counsel when evaluating a given campaign.

State laws often do not apply to advocacy calls if they do not contain a solicitation for the sale of goods or services or a donation.

Very few states ban all prerecorded calls and some require a user of equipment which can place prerecorded calls to register or obtain a license with a nominal fee from the state.

Again, you should review state law prior to engaging in a given campaign but state law likely will not bar a given use of prerecorded messages especially if it does not involve a solicitation or donation.