Trump Robocalls May Sidestep Montana Prohibition, but TCPA Suits Possible

Montana penalties may be unlikely against Republicans for calling voters with recorded endorsements for U.S. House candidate Greg Gianforte (R) by President Donald Trump and Vice President Mike Pence, despite a Montana law banning robocalls. Enforcement of the state prohibition is difficult, Montana’s authority on political ethics told us Thursday. However, complaints are possible under the federal Telephone Consumer Protection Act, a TCPA attorney said. Gianforte also faced criticism after reportedly body-slamming a reporter asking questions about healthcare at a campaign event.

Montana law bans using an automated telephone system​, device or fax machine “for the selection and dialing of telephone numbers and playing of recorded messages if a message is completed to the dialed number for the purpose of: (a) offering goods or services for sale; (b) conveying information on goods or services in soliciting sales or purchases; (c) soliciting information; (d) gathering data or statistics; or (e) promoting a political campaign or any use related to a political campaign.” The RNC, which didn’t comment, might be able to avoid the Montana prohibition by invoking an exception in MCA 45-8-216 allowing recorded messages to be played if a live operator first asks the called party for permission.

Robocalls are illegal in Montana​, but enforcement is difficult, the state Commissioner of Political Practices (COPP) Jeff Mangan emailed us. Because it’s criminal code, it’s a law enforcement issue “even if the nature of the call is political,” he said. “Attempts made to place political robo calls under the jurisdiction of the COPP in past legislative sessions have failed.” Federal election matters are outside the commissioner’s jurisdiction and referred to the Federal Election Commission, he said. The Montana Public Service Commission doesn’t have authority to act, a PSC spokesman said.

“Local law enforcement has been reluctant to investigate or prosecute the complaints because of the difficulty in prosecuting this type of statute,” a 2010 COPP handout said about the Montana robocalling law. “Often, the calls come from outside Montana. In the case of political campaigning, the callers may raise issues of First Amendment Free Speech as well, potentially making prosecution difficult and expensive.”

State and federal laws don’t take robocalls lightly, said Dorsey attorney Eric Troutman, who specializes in TCPA cases. “Making robocalls to a cell phone without the consent of the called party is a violation of both state and federal law, even if the message is informational or political in nature,” he emailed. “The Montana law goes farther than federal law, however, and bars such messages to landlines as well.” Using live operators to invoke the statutory exception may be a smart runaround by the RNC, Troutman said, “but they need to make sure that their operatives are respecting ‘no’ when they hear it.”

“While Montana law enforcement may wish to spend their resources elsewhere, the Department of Justice and several State Attorneys General have sued callers in TCPA suits many times,” Troutman said. “The FCC also maintains the power to issue forfeiture sanctions of up to $16,000.00 per violation under the Communications Act.” Under TCPA, private right of action allows any person to file suit and collect statutory damages up to $1,500 per violation, the lawyer said. During the election, Trump’s campaign was sued in a class-action lawsuit about robotexts in Illinois, Troutman noted. “The Obama for America campaign was also sued under the TCPA in a class action in Florida a few years back.”

Meanwhile, assaulting Ben Jacobs of The Guardian "would be an outrageous escalation of the recent trend toward elected officials and those seeking elected office obstructing and even, now, assaulting reporters who are merely trying to do their jobs," said Radio Television Digital News Association Executive Director Dan Shelley. Society of Professional Journalists National President Lynn Walsh said “it is never acceptable to physically harm or arrest a journalist who is simply trying to do his or her job," mentioning freedom of the press. Gallatin County "authorities should show that politicians will be held accountable for attacks against journalists who are merely trying to keep the public informed,” said Committee to Protect Journalists Program Director Carlos Lauría.

Jacobs "entered the office without permission, aggressively shoved a recorder in Greg's face, and began asking badgering questions," and had "grabbed Greg's wrist, and spun away from Greg, pushing them both to the ground," Gianforte's spokesman responded. He didn't comment on the robocalls.