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No on Prop 46 Robocalls Likely Violate the TCPA.

  Have you received robocalls against Prop 46 in California?  Did a pre-recorded message blather away on your cell phone?   Such calls are illegal if the caller did not have "express written consent."  It's punishable for $500 for each call and $1,500 if done knowingly or willfully under the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. ("TCPA").  Contact Kristensen Weisberg, LLP at klg@kristensenlaw.com or (310) 507-7924 if you were robocalled by the No on Prop 46 without  "express written consent." While people often support various causes, most if not all, do not sign up to inundated with political calls.  Often times the campaigns, or the advocacy groups, simply purchase a list of cell phone numbers when they have no prior relationship with the owners of those cell phones. Someone may scratch their head and say, does that infringe on free speech.  No it does not.  Can a campaign call you five times at night even if you are on the do not call list.  Of course not.  The TCPA is a content-neutral law.   It's not aimed at specific types of robocalls, but all robocalls.  The general rule is that content-neutral laws regulating the time, place and manner of speech are not subject to strict scrutiny.  See City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47 (1986).  A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.  See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). The Fourth, Seventh, Eighth, Ninth and Tenth Circuits long ago and more recently have all rejected First Amendment challenges to autodialer laws.  See Nat'l Fed'n of the Blind v. FTC, 420 F.3d 331, 351 (4th Cir. 2005) (Special Olympics and National Federal of the Blind hired outside entities to raise money for their non-profit charities.); Nat'l Coalition of Prayer, Inc. v. Carter, 455 F.3d 783, 792 (7th Cir. 2006); Fraternal Order of Police v. Stenehjem, 431 F.3d 591, 600 (8th Cir. 2005) (also upholding limitations on calls of professional charitable solicitors); Van Bergen, 59 F.3d at 1549-56 (Minnesota TCPA statute applied to gubernatorial candidate); Bland v. Fessler, 88 F.3d 728, 732-36 (9th Cir. 1996) (rejecting First Amendment challenges to two California statutes regulating autodialers); Moser v. FCC, 46 F.2d 970, 973-85 (9th Cir. 1995) (TCPA restriction are permissible time, place, and manner restrictions on speech); Mainstream Mktg Servs. Inc. v. FTC, 358 F.3d 1228, 1246 (10th Cir. 2004). The North Dakota and Minnesota Supreme Courts also arrived at the same conclusion.  See FreeEats.com, 712 N.W.2d at 841; State by Humphrey v. Casino Mktg. Group, Inc. 882, 891-92 (Minn. 1992). The uniform theme in all the decisions is that private homes are not public fora, and callers have no right to impose any sort of message on residents without consent.  The Van Bergen decision also involved political speech run by campaigns, not their third party vendors seeking information.  An unsuccessful gubernatorial candidate was upset he could not auto-dial all of Minnesota with his ads.  The Eight Circuit found the regulation to be content-neutral and more importantly found the private telephone system, like cable television and privately-owned public utilities to not be public forums.  Id. at 1552-3. Kristensen Weisberg, LLP supports robust debate, but we do not support robocalls to voters without their express written consent.  

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