Brian Dressel, Michigan Journal of Environmental and Administrative Law
They are calls that many of us get and few of us want. Just as you are sitting down to dinner the phone rings, and you have someone “important” on the other line. On the other end is someone who is not only important, but also wants something from you. They want your vote, your support, or maybe even your money.
“Hello! This is Vice President Biden and I wanted to reach out to you and make sure you get to the polls and cast your vote for President Obama and me next Tuesday. To find your polling place, please visit…”
“Hello, this is Mitt Romney and I invite you to join me tomorrow in voting for Ted Cruz, a true conservative…”
After these impersonal, mass telephone calls, one could be excused for, in a state of mild annoyance, being left wondering whether these calls have ever swayed somebody’s vote. Of course, the more likely thought is that those moments spent on the phone with a politician or celebrity’s recording are now gone forever.
Given the commonplace occurrence of these calls, the fact that there are regulations in place governing the use of these campaign techniques may come as a surprise. Nonetheless, there are specific regulations that control the order of these calls, the information they convey, they types of lines that may be called and the manner of communication.
The genesis of these regulations is the 1991 Telephone Consumer Protection Act. This act regulates unsolicited phone communications whether they come from telemarketers or political campaigns. In enforcing the act, the FCC says that it is “committed to protecting consumers from harassing, intrusive, and unwanted robocalls and texts, including to cell phones and other mobile devices.” A single violation of any of these regulations can lead to an enforcement action that ends with a fine of up to $16,000.
Among the regulations for the content of these messages are requirements for the speaker to identify him or herself and the organization at the beginning of the message and that the telephone number be communicated to the listener at some point during or immediately after the call. These calls also cannot take up more than one phone line of a multi-line business simultaneously.
While the above restrictions are somewhat restrictive, they ultimately do not impact the ability of political campaigns to get their message to voters through these calls. The restriction that does have such an effect is the absolute prohibition on mobile phone communications.
At the time the 1991 law was enacted, there was no reason to consider the possibility that people would someday not have a landline. Even as recently as 2004, over 90% of American homes had a landline. That number has fallen below 60% while the amount of homes that uses cell phones only has risen continually to the point where it approaches 50% of homes. While older people are more likely to still have landlines than younger ones, more than half of the individuals who have gotten rid of landlines are thirty-five years old or older, as of 2014.
Political calls are less restricted than commercial solicitations under these rules in some ways. They are not restricted by “Do-Not-Call” lists on the theory that calls that encourage political discourse are distinct from calls that are commercial in nature. However, the calls are not excepted from complying with the cell phone prohibition.
There are exceptions that allow automated phone calls to cell phones. The only one relevant to this particular issue is an allowance when someone expressly gives permission to be contacted through his or her cell phone. This means that if someone gives the campaign permission, they can be called or texted on their cell phone by the campaign.
This allowance could certainly be helpful to campaigns in some ways. It allows them to solicit donations and volunteers from a pool of known supporters. It also allows them to stay in contact once someone has established a connection to the campaign.
On the other hand, this exception will mean very little to campaigns when it comes to another main goal of these calls. It seems to be a safe assumption that most people that grant a campaign their expressed permission to contact their cell phones are already supporting the campaign. If they took the time to sign up for campaign alerts, one would think they are likely to vote for that campaign on election day. A campaign would benefit more from turning out people to vote who may fit the profile of their typical supporter but as of yet has not expressed their support.
All of this raises the question of whether it is time for the FCC and the law to reflect the significant changes that have taken place and continue to take place in the way that American people use phone technology. By allowing campaigns to use landline numbers owned by people asking not to be called in the name of political discourse, a value judgment has been made that these calls are inherently different. Surely, political discourse is also a value for cell phone users.
On the other hand, an argument could certainly be made that these calls are obnoxious and usually unwanted and we therefore should not be concerned about their preservation. This argument, however, misses a crucial point. In creating the existing regulations, a balance was struck between the interest in curtailing the use of robocalls by political campaigns and others and the interest of these parties in making these calls.
The precise nature of this balance was informed by the way people used phones at the time the determination was made. The trouble is, the use of change has fundamentally changed. Per the numbers discussed above, over 90% of people were reachable by political robocall in 2004 while roughly half of people would be reachable today. The answer on how to handle this depends on how one views the purpose of the original cell phone-landline delineation. If the distinction is in place so that people cannot be reachable by these sorts of calls no matter where they are, the balance remains sensible, as people are still almost always accessible by cell phone. If, however, the value is in the not having people accessible from more than one point, the changed dynamics could lead to a push to change the rules.
As more and more people move away from using landlines towards the use of cell phones, regulations like this are going to become obscure. A cell phone is now the only phone for many people. Even for those who have landlines, there is no guarantee that they don’t also have a cell phone that they use as much or more than their landline. We can all debate how relevant these calls are to our political structure. We can argue about how much of a difference it would make if they went away forever. What is not up for discussion is that people’s use of cell phones has changed and, as of yet, the regulations on unsolicited phone calls have not kept pace with those changes. As the FCC looks at promulgating future regulations in this area and with phone calls in general, it will be important that the agency consider the decreasing relevance of landlines and the increased use of cell phones in order for their regulations to have the proper effect.
The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.
 See FCC, Biennial Reminder for Political Campaigns about Robocall and Text Abuse, at 1 (Mar. 14, 2016), available at http://transition.fcc.gov/Daily_Releases/Daily_
 Id. at 2.
 Niall McCarthy, The Great Decline of Landlines (Infographic), Forbes.com, (Feb. 27, 2015 at 8:51 AM) available at http://www.forbes.com/sites/niallmccarthy/2015/02/27/the-great-decline-of-the-landline-infographic/#3cdc66731d82.
 Victor Luckerson, Landline Phones are Getting Closer to Extinction, Time (July 8, 2014)
 The National Law Review, Political Robocalls are Subject to TCPA Rules: Reminder from Federal Communications Commission Enforcement Advisory, Mar. 17, 2016, available at http://www.natlawreview.com/article/political-robocalls-are-subject-to-tcpa-rules-reminder-federal-communications.
 FCC Biennial Reminder at 2.