FOR IMMEDIATE RELEASE

December 4, 2009

Attorney General defends Indiana robo-call law from national political group’s challenge

Zoeller urges Federal Election Commission to keep state law intact

INDIANAPOLIS – In light of a political activist group’s efforts to invalidate state laws protecting consumers from annoying prerecorded calls, Indiana Attorney General Greg Zoeller is urging federal officials not to override Indiana’s law restricting robo-calls.

Since 1988, Indiana law has prohibited the use of robo-calls -- prerecorded messages placed to thousands of phone customers through "auto-dialer" technology. Just last year, the attorney general’s office was given the green-light by the Indiana Supreme Court for enforcement over those who would violate the law following a challenge to that authority by political action groups in 2006. Prerecorded phone messages are illegal in Indiana unless the individual consumer’s permission is obtained first, through a live operator or "opt-in" agreement.

"Hoosiers have come to appreciate the peace and quiet that our telephone privacy statutes have returned to their homes. I've been told repeatedly that they detest robo-calls and don't want to receive them. Most consumers don’t want pre-recorded phone calls from businesses and they certainly don’t want them from political candidates," Zoeller said. "Indiana's strong Do Not Call law and Auto-Dialer law are nationally respected and my office will resist any attempt by political activists to weaken or undercut them."

A political group that advertises on behalf of certain candidates, America Future Fund Political Action or AFFPA, has asked the Federal Election Commission to issue an advisory opinion that federal election law supersedes or overrides robo-call restrictions in Indiana and other states. The FEC is asked to consider whether political groups that spend money in federal election campaigns are exempt from state laws limiting or prohibiting robo-calls.

"If AFFPA prevails, any political group that spends money on federal candidates could be exempt from state-level robo-call laws. Candidates and the groups that support them could blast out prerecorded calls with impunity," Zoeller said. "This effort to erode our protections from robo-calls comes after the Federal Trade Commission recently banned prerecorded sales calls to consumers without their permission, due to greater use of auto-dialer technology by scammers."

Zoeller's official response to the FEC urges the commission to rule against AFFPA and find instead that existing federal regulations on campaign spending do not override or preempt state laws limiting robo-calls. "The notion that a national political group could somehow trump state law merely by spending campaign funds on advertising is disturbing and offensive," the attorney general said. "If that were true, political activists could circumvent local ordinances restricting pamphlet-littering or campaign billboards, just by spending campaign money on their promotion."

Instead, Zoeller favors no change in the longstanding current interpretation of FEC regulations, which allows Indiana and other states to enforce their individual robo-call restrictions.

Zoeller noted that Indiana's Auto-Dialer law is crafted so that candidates can send prerecorded messages to any voters who want to receive them. Robo-calls from candidates are legal if a live operator obtains the consumer's permission first, or if the consumer opts in to receiving such calls, usually through an email permission form.

The campaign organizations of two Indiana elected officials – U.S. Rep. Brad Ellsworth, a Democrat, and Governor Mitch Daniels, a Republican – previously have used the opt-in feature to send prerecorded messages legally and properly to consumers who requested them, Zoeller said.

During the 2006 election cycle, former Attorney General Steve Carter filed suit against two political groups – who were making illegal campaign-related robo-calls for and against congressional candidates -- for violating the Auto-Dialer law.

 

Zoeller, who succeeded Carter as attorney general in January, is now plaintiff in both lawsuits.

The FEC's decision on AFFPA's request for an opinion on federal preemption of state robo-call laws is expected at a later date.  "A ruling by the FEC in Indiana's favor will let us maintain our strong enforcement against robo-calls while maintaining Indiana’s vigorous tradition of sharp political debate," Zoeller said.