AG Clarifies Robocalling Rules as Bush Campaign Calls Out Kasich Calling Practices

Feb 1, 2016

Credit flickr by liewcf

It’s illegal to leave a prerecorded voicemail for someone on the “do not call” registry — even if the call was placed by a live caller — according to the New Hampshire Attorney General’s office.

Jeb Bush’s campaign had asked the attorney general to clarify the law around prerecorded political messages after WMUR-TV reported that John Kasich’s campaign was being investigated for its calling practices.

State law dictates that “No person shall deliver or knowingly cause to be delivered a prerecorded political message to any telephone number on any federal do not call list.” It defines “prerecorded political message” as an audio telephone message delivered by a candidate, political committee or someone trying to advocate on behalf of a candidate or political cause. 

In a memo issued Monday, the attorney general said it doesn't matter how the calls originated.

"The prohibition has no material exclusion; it is absolute," the memo reads. "The statute makes no distinction between a prerecorded political message delivered by a live person or an automated dialing machine, nor does the statute distinguish between prerecorded political messages received by a live person or a telephone answering device."’

The memo was a meant as a broad response to the Bush campaign's request for clarification and not meant to single out any particular candidate, Assistant Attorney General Stephen Labonte said.

However, Labonte did confirm that someone recently filed a complaint with the attorney general’s office regarding another campaign's use of prerecorded political messages. He declined to share the complaint with NHPR, saying that his office was “still looking into it.” 

Last week, WMUR reported that an Amherst resident filed a complaint with the attorney general’s office over a call he received from Ohio Gov. John Kasich’s campaign. 

According to WMUR, the man said his number is on the federal do-not-call registry but he recently received two messages that were identified as being from the Kasich campaign.

At the time, Tom Rath, a Kasich adviser and a former New Hampshire attorney general, told WMUR that the Kasich campaign believed the messages to be within the bounds of the statute because the calls themselves originated from live callers, not automated ones.

In its letter asking the state to clarify the statute, the Bush campaign specifically points to the WMUR report and Rath's comments describing the campaign's calls.

“To date, our campaign has abided by the plain meaning of New Hampshire’s law and has refrained from delivering prerecorded messages to voters on the do not call list through any manner, whether it is via automatic dialing devices or via live callers when voters do not answer the telephone,” Bush's general counsel Megan L. Sowards wrote. “Given the conduct of our opponents, we ask that your office immediately issue guidance regarding the application of this statute to level the regulatory playing field.”

After the attorney general’s memo was issued, Rath told NHPR that the Kasich campaign thought it was acting appropriately — but they welcomed the state’s guidance on the issue and planned to adjust their approach accordingly.

“We intend to comply with whatever the attorney general tells us to do,” Rath said, adding that he has received several similar prerecorded messages from other candidates running this year.

The Bush campaign, however, said the attorney general’s memo suggests that the Kasich campaign was engaging in illegal calling practices.

"It's troubling that the Kasich campaign broke a very clear law in regards to pre-recorded spamming to people on the do not call list,” spokesman Jesse Hunt said in an email. “We are proud we have a ground game that works hard to make individual voter to voter contact and is respectful of New Hampshire citizens."

At this point, Labonte said no campaigns have been penalized.

A campaign found to be violating the law would typically receive a cease and desist letter on first notice, Labonte said. If the campaign continued to violate the law after that initial notice, it could be subject to a civil penalty of up to $5,000 per violation.

If someone files a new complaint with the attorney general’s office, Labonte said it would be investigated regardless of whether the potential violation occurred before or after today’s memo was issued.