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Monday, June 14, 2010

Ind. Courts - Robocall suits in two courts

Tricia L. Nadolny reports today in the Indianapolis Star about a suit in federal court, in a story that begins:

An Illinois-based nonprofit is suing the state of Indiana in federal court, claiming its law banning robo-calls violates the group's right to free speech.

Patriotic Veterans Inc. is challenging a 1988 law that prohibits using automatically dialed phone calls to deliver a prerecorded message unless consumers have given consent. The group said it plans to use the calls leading up to the November general election.

Indiana Attorney General Greg Zoeller said in a news release that he will defend the law.

"Hoosiers have said in no uncertain terms that they detest robo calls, don't want to be disturbed by such intrusions -- and they value the privacy that our state's laws afford them," Zoeller said in the release.

Patriotic Veterans claims the Indiana law is pre-empted by a similar but a more lenient federal law on robo-calls that took effect Sept. 1. Both laws ban prerecorded telemarketing calls unless the consumer has given consent, but the federal law makes exceptions for nonprofit groups, telephone carriers and politicians, among others.

And here is an order filed June 10, 2010 in a case in state court - Brown Circuit Court. Some quotes from the order by Special Judge Kenneth G. Todd, the case is State v. FreeEats:
FreeEats.com, Inc. (hereafter ''FreeEats''), a Delaware corporation located in Virginia, uses an artificially intelligent calling ("AIC") system to contact residences throughout the United States via telephone on behalf of its clients. The system's prerecorded messages are interactive, and they conduct polls, identify supporters of political issues and candidates, and encourage voting. With the system, FreeEats could call 1,700,000 Indiana residences in 7 hours. It calls residences as many as three times before leaving messages on answering machines but never makes any calls between 9:00 P.M. and 8:00 A.M.

During the congressional campaign in September 2006, FreeEats used its AIC system to disseminate a political message in Indiana for the Economic Freedom Fund ("EFF'). As evidenced by State's declarant John Vanderlippe's recording, the prerecorded messages only responded to some words, such as ''yes,'' ''no,'' and ''repeat'' They identified the EFF but did not identify FreeEats or explain how to register do-not-call requests, and they repeatedly failed to answer the question "Who is behind this call?" On behalf of the State of Indiana (hereafter "State''), the Attorney General filed a complaint for damages and an injunction in state court on September 18, alleging that the EFF and ten John Does had violated the Automatic Dialing
Machines statute ("ADMS',), Ind .. Code § 24-5-14. The EFF agreed to be preliminarily enjoined. * * *

Finally, potential harm to FreeEats outweighs potential harm to the State. FreeEats's clients' politica1 calls would be limited or even eliminated by the cost of obtaining consent in a form the ADMS would recognize. Their political message would not reach as many Indiana residences as quickly, and it would be irreparably hanned. The State characterizes its potential harm as the invasion of Indiana residences' privacy. However, it is not clear that privacy is less invaded when consent is obtained, consistent with the ADMS, by operators instead of Ale systems. Furthermore, the core constitutional value of political speech is at stake for FreeEats, and it greatly outweighs the State's interest in protecting residential privacy from telephone rings. As the Supreme Court noted in Price, ''the law does not deal in trifles, and mere annoyance or inconvenience is not sufficient" to justify interference with § 9 liberties. 622 N.E.2d at 964.

The State may not enforce the ADMS against calls disseminating political messages when the residences receiving those calls have consented, even if that consent was obtained by an AIC system. Enforcing the ADMS in that manner would materially burden the core constitutional value of political speech, which is stringently protected by Article 1, § 9 of the Indiana Constitution. However, the State may enforce the ADMS against calls disseminating political messages when the residences receiving those calls have never consented. Requiring FreeEats to obtain consent .. and allowing it to use its Ale system to do so, would not materially burden its political speech.

Posted by Marcia Oddi on June 14, 2010 09:46 AM
Posted to Indiana Courts