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Court sides with state on auto-dial law but orders review

November 23, 2013

A federal appeals court has ruled that an Indiana law banning most political calls that use automated dialers and recorded messages doesn’t violate federal consumer-protection rules.

But the 7th Circuit Court of Appeals sent a case back to a lower court to decide whether the state law violates the First Amendment of the U.S. Constitution.

“This decision confirms the position we have been advocating for over a decade in every forum where our telephone privacy laws have been challenged,” Attorney General Greg Zoeller said in a prepared statement. “Federal law bearing on telemarketing simply does not preclude broader state prohibitions.”

But he acknowledged that the lower court will now be reviewing the law again – this time in light of constitutional questions.

“My office will continue to enforce and defend the state’s telephone privacy laws, but there is more work ahead to ensure Hoosiers are protected from annoying and intrusive robocalls,” Zoeller said.

At issue is an Indiana law that applies to commercial and non-commercial speech and prohibits automated, pre-recorded calls unless a live operator introduces the message. Schools are exempted, as are organizations that receive a consumers’ permission to call.

The General Assembly passed the law more than 25 years ago but it was not initially enforced against political parties, campaigns or special interest groups. Over the years, those groups used robo-calls for a variety of purposes – such as sending reminders for voters to request absentee ballots or go to the polls, delivering endorsements from prominent politicians, or criticizing opponents – because they are cheaper than calls made by volunteers or paid-professionals.

But in 2006, then-Attorney General Steve Carter announced he would enforce the law in regard to political calls, too. The Indiana Republican and Democratic parties went along with the decision, but outside groups continued to make the calls and Carter moved to fine the offenders.

One of those groups – American Family Voices, which was using the autodialing machines in the 9thCongressional District race between Democrat Baron Hill and Republican Mike Sodrel – sued the state, leading to an Indiana Supreme Court ruling that upheld the law.

Then in 2010, Patriotic Veterans, a political advocacy organization based in Illinois, sued the state in federal court, challenging that the law violated the federal Telephone Consumer Protection Act as well as the free speech clause of the U.S. Constitution.

U.S. Judge William Lawrence of Indiana’s Southern District decided in 2011 that the state law violates the federal Telephone Consumer Protection Act, which regulates calls made from one state to another. He did not then rule on the constitutional question.

The state appealed, leading to the appeals court decision on Thursday.

“The plain language (of federal law) dictates that the Indiana statute is not expressly preempted,” the appeals court said. “This is true whether the Indiana statute is one that merely regulates autodialed interstate calls or prohibits them.”

But the ruling said the district court should now have the opportunity to consider the constitutional question.

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