In his September 19 CNJ post GOP Committeeman Rob Eichmann dishonestly claims the following.
The laughter is palpable as he [Dana Pearson] foolishly spends time arguing that political or survey calls are somehow covered by a “Do not call” list.
I never claimed that these calls are covered by a “do not call” list. What I do claim is that certain recorded messages are prohibited.
In my view (I’m not an attorney and I welcome clarification from any attorneys out there), the law is not entirely clear.
1. As used in this act:
“Caller” means a person who attempts to contact or contacts a subscriber in this State by telephone or using a telephone line.
“Subscriber” means a person who has subscribed to telephone service from a telephone company regulated as a public utility under Title 48 of the Revised Statutes or from a company offering mobile telephone service.
48:17-28. Delivery of certain recorded telephone messages prohibited.
2. A caller within the State [emphasis added] shall not use a telephone or telephone line to contact a subscriber within the State to deliver a recorded message other than for emergency purposes, unless the recorded message is introduced by an operator who shall obtain the subscriber’s consent before playing the recorded message, or unless a prior or current relationship exists [emphasis added] between the caller and the subscriber.
Last modified: March 29, 2010
48:17-29. Use of certain devices; violation
3. The use of automated dialing, push button, or tone activated devices which operate sequentially or are otherwise unable to avoid contacting subscribers who have not consented to the playing of the recorded message as provided in section 2 of this act is prima facie evidence of an intention to violate this act.
The first possible loophole is what it means to be “a caller within the State.”
Apparently, the recent push polls to callers in Monmouth County were commissioned and paid for by the New Jersey Conservative Republican Leadership Committee (NJCRLC); the first calls were made on the night of August 17th.
Presumably, a case could be made that the “caller” is NJCRLC, possibly located outside of this state. Nevertheless, even if the calls originate out of New Jersey, reports commonly portray the law as concerning all political calls.
For example an October 2008 Time magazine story noted the following.
But because robo-calls are considered a form of political speech, they are protected by the First Amendment and, therefore, not subject to the National Do-Not-Call Registry created in 2003 that allows consumers to block unwanted telemarketing calls.
States like California, Indiana and New Jersey have banned political robo-calling outright, [emphasis added] but such laws are routinely flouted — not only because few agencies enforce the rules but because voters are often unaware that their rights are being violated. Indiana’s Attorney General unsuccessfully sued a Democratic non-profit group, American Family Voices, for launching a series of robo-calls against then-Rep. Mike Sodrel.
A second possible loophole is that “current relationship” is not defined and may cover previous donors, party members, registered voters and so on.
Black’s Law Dictionary defines “relationship” as follows:
The nature of the association between two or more people; esp. a legally recognized association that makes a difference in the participants’ legal rights and duties of care.
I think it is a more than a stretch to make “registered voter” fit the definition.
Black’s goes on to enumerate only the following types of relationship: attorney-client, confidential, doctor-patient, employer-employee, trust, fiduciary, master-servant, parent-child, professional and special. I don’t think a “registered voter” fits any of these types of relationship.
Regardless of how the law applies to the calls in question, “push polls” are designed to sway opinions with negative leading questions instead of solicit opinions. They are offensive and reflect poorly on those who commission or pay for them. All politicians and activists (I’m thinking of Mike Doherty, Alison McHose and Steve Lonegan) that may be associated with NJCRLC, if they have a shred of integrity, should condemn the use of these push polls.