Telephone Law

• DEFINITION: Legislation regarding the uses of telephones and related telecommunications equipment
• SIGNIFICANCE: Speech over telephones is generally protected, but public concerns about privacy, telemarketing, and the sale of sexually oriented conversations over phone lines led to calls for legislating new restrictions on the use of telephones

Telephone solicitation does not refer to fundraising or other calls by tax-exempt nonprofit organizations. There are no legal restrictions on fundraising by such organizations in the United States. There are, however, some restrictions on the use of telephones for commercial solicitation. For example, state laws typically restrict the hours that telemarketers may call private residences to between 9:00 a.m. and 9:00 p.m. There are also specific restrictions regarding the use of automated telephone equipment. For example, it is against the law to use an automated telephone dialing system to call the emergency number 911, patient rooms of hospitals, healthcare facilities or homes for older people, or any telephone numbers assigned to paging services, cellular telephone services, mobile radio services, or any services for which the parties being called would be charged for such calls.

Most American states have statutes restricting various telemarketing practices, but telemarketers can evade such prohibitions through interstate operations. The U.S. Congress considered establishing a single national database to compile a list of telephone numbers of residential subscribers who object to telephone solicitations but did not do so, leaving telemarketers free to call anyone listed in telephone directories. In 2003, the Federal Trade Commission established a “Do Not Call Registery,” limiting telemarketing calls to those who wanted to opt-out.

Until the early 2000s, the only recourse for those who strongly objected to receiving telephone solicitations was to join an organization such as Private Citizen, based in Naperville, Illinois. For twenty dollars, telephone users could have their numbers listed in this company’s directory and distributed to telemarketers. The directory notified telemarketers that if they called anyone listed, they must pay those persons one hundred dollars for using their telephones. Whether or not anyone actually collected fines from telemarketers, being listed in such directories claimed to be effective in discouraging telemarketers from calling.

Aware that consumers consider automated or prerecorded telephone calls to be great nuisances, Congress passed the Telephone Consumer Protection Act, which prohibited sending prerecorded commercial messages to people’s homes without the consent of those being called. However, this law was challenged and found unconstitutional in Moser v. Federal Communications Commission in 1993 because it was not a content-neutral time, place, or manner restriction. The statute was content-based not only because it distinguished between recorded versus live speech but also because it distinguished between commercial versus noncommercial messages (other users of prerecorded message machines have included schools, which use them to inform parents of their children’s absences). Such distinctions were found to be unconstitutional.

It has been illegal to send unsolicited advertisements to telephone facsimile (fax) machines. Fax advertisers have challenged this law as unconstitutional, but a federal district court in Oregon held the law to be constitutional. Fax advertisements are commercial speech, so the government may legally prevent unfair cost-shifting to recipients of unsolicited advertisements (the cost-shifting occurs because fax recipients must pay for the paper on which the messages are printed). Therefore, a ban on all unsolicited fax advertising was held reasonable in Destination Ventures v. Federal Communications Commission in 1994.

Aggressive Boycotts

In January 1996, acquitted defendant O. J. Simpson released a video pleading his innocence in the murder of his former wife. Consumers could purchase his video by calling an 800 number. An immediate backlash against Simpson developed, with campaigns on radio talk shows, fax machines, and even in cyberspace to block sales of his video by keeping telephone operators so busy with questions that they could not handle calls from actual buyers. Cautious radio talk show hosts did not actually advise their listeners to swamp Simpson’s 800 number with calls to avoid being charged with conspiring to obstruct a business enterprise. Although it is clearly legal to organize a boycott of any product, an “aggressive boycott,” in which people actively interfere with one’s right to market, might indeed raise questions of legality.

Privacy

On October 25, 1994, Congress passed the Digital Telephony Act of 1994. Known officially as the Communications Assistance for Law Enforcement Act, the law was passed because of complaints by law enforcement agencies that new telecommunications technology was impeding their ability to conduct wiretaps and trace messages during criminal investigations. The act requires telephone companies to make it technically easier to conduct lawful wiretaps, and wiretapping capabilities must be incorporated (at the carrier’s expense) into the new technology created by the telephone companies. Law enforcement officials may wiretap a private telephone line, provided that a judge has signed a valid warrant permitting the tap, and Federal Communications Commission (FCC) employees are permitted to monitor electronic communications.

It is, however, illegal for journalists or anyone else to tap someone else’s telephone. The Omnibus Crime Control and Safe Streets Act, passed in 1968 and amended in 1986 as the Electronic Communications Privacy Act, also known as the Federal Wiretap Statute, prohibits the interception of any conversation carried over a wire or a nonwire conversation in a setting in which one expects privacy. Therefore, anyone who uses a wiretap to record a phone conversation between other people would be liable for violating the statute.

There is an important exception. The statute expressly permits a participant in the conversation to record it secretly—provided that the person is not doing so to commit a criminal or tortious act. This exception allows journalists to tape-record their telephone conversations with interview subjects because the consent of only one party to the conversation—in this case, the reporter—is required. However, if a reporter’s purpose in taping a conversation is to commit a tort such as libel, the reporter would be violating the statute. California, Delaware, Florida, Illinois, Louisiana, Maryland, Massachusetts, Michigan, Montana, New Hampshire, Oregon, Pennsylvania, and Washington have outlawed such recordings. These states are all-party consent states, meaning that all parties to a telephone conversation must give prior consent before a conversation is tape-recorded. Other states are one-party consent states, meaning that participant recording is permitted, provided there is no intent to commit a tort.

In addition to the Federal Wiretap Statute, the FCC’s phone rule requires that before recording a telephone conversation for broadcast, a radio or television station must tell any party to the call that it intends to broadcast the conversation, whether the conversation is being taped or broadcast live.

Harassment and Obscene Telephone Calls

Any people who make telephone calls without disclosing their identity and with intent to annoy, abuse, threaten, or harass a person whom they are calling, or anyone who causes someone else’s telephone to ring repeatedly with intent to harass that person may be fined up to fifty thousand dollars, or imprisoned for up to six months, or both. Anyone who makes any comment or request that is obscene, lewd, lascivious, filthy, or indecent may also be fined up to fifty thousand dollars, or imprisoned for up to six months, or both.

Dial-a-Porn

In 1982, “dial-a-porn” services became widely available through small telephone companies called “Baby Bells.” Offered by a large number of small companies, these services differed in many respects but shared the commonality of offering customers the chance to hear sexually oriented recordings or have uninhibited conversations about sex. Customers typically paid for such services by the minute. Although the Baby Bell companies began making large profits by sharing the revenues from dial-a-porn, some of them reacted strongly against being required to carry dial-a-porn. Several companies even sued dial-a-porn producers, seeking declaratory relief from having to distribute sex messages over their networks. Federal courts of appeal have dealt with this problem inconsistently. Whereas some Baby Bells were allowed not to carry dial-a-porn, others were required to carry it because telephone companies are common carriers. For example, the Baby Bells in Louisiana, Florida, and Arizona all refused to carry dial-a-porn, and the courts upheld their decisions. In contrast, California courts held, in 1989, that Pacific Bell had to carry dial-a-porn because it was a common carrier, despite Pacific Bell’s objections. In Texas, Southwestern Bell permitted only recorded messages but prohibited live conversation on its information provider lines, upheld by Texas courts in 1987.

In response to such controversy, Congress amended sections of the Communications Act of 1934 with the Telephone Decency Act (also known as the Helms Amendment after its principal sponsor, Senator Jesse Helms). This act contained a provision banning all dial-a-porn services, including indecent and obscene speech. Several dial-a-porn providers challenged the Helms Amendment as unconstitutional, but the only case to reach the U.S. Supreme Court was Sable Communications of California, Inc. v. Federal Communications Commission (1989). The Supreme Court held that the 1988 Helms Amendment was constitutional in banning obscene speech but unconstitutional in banning indecent speech over the telephone. In a concurring opinion, Justice Antonin Scalia added that “while we hold that the Constitution prevents Congress from banning indecent speech . . . we do not hold that the Constitution requires public utilities to carry it.”

The legal definition of obscenity was determined by the U.S. Supreme Court in Miller v. California (1973), in which the Court held that a jury must decide first whether the average person, applying contemporary community standards, would find that the material appeals to prurient interest; second, whether the work describes, in a patently offensive manner, sexual or excretory conduct defined by the applicable state law; and third, whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

The FCC issued two Notices of Apparent Liability to dial-a-porn providers for obscenity in 1988. The first was issued to Audio Enterprises. A second involved a dial-a-porn provider called Intercambio. Applying the Miller v. California test for obscenity, the FCC concluded that the messages were “consistently obscene”; it described in detail a scene in which an uncle sexually abused his nephew and a second scene in which a “doctor” sodomized a young boy during a physical exam. The FCC fined Intercambio $600,000 for not restricting minors’ access to its messages (dial-a-porn providers are legally required to limit minors’ access to their messages through the use of credit cards or personal identification numbers, which adults must apply for in writing).

The difference between indecent and obscene speech was not resolved. The only clue that sheds light on this question appeared in Scalia’s concurring opinion in the Sable case, in which he suggested that “indecent” speech appeals to “normal, healthy sexual desires,” as opposed to “shameful or morbid” sexual desires which are presumably obscene. Despite this clue, as a matter of practical application, the distinction in the Sable opinion between indecent and obscene speech ranges from vague to opaque. The dial-a-porn providers charged that the Helms Amendment unconstitutionally transformed telephone companies into a species of government-licensed but unguided and unsupervised censors, police officers, and prosecutors. If dial-a-porn is obscene, the Baby Bells can refuse to carry it, but this casts them in the role of censors, even if the Justice Department does not admit it. By being placed in the position of having to decide whether to carry dial-a-porn, just as a newspaper publisher may decide whether to print advertisements for pornographic films, the Baby Bells, in effect, had to take a small step toward the role of publisher rather than common carrier.

Three years after the Sable decision, dial-a-porn providers again asked the U.S. Supreme Court to declare the Helms Amendment unconstitutional in Dial Information Services v. Thornburgh (1991). The Supreme Court declined to hear the case, clearing the way to enforce the Helms Amendment. By the mid-1990s, most Baby Bells had discontinued billing and collection on dial-a-porn, leaving the dial-a-porn providers to bill customers by credit card.

As technology advanced, laws regarding telephone calls and applicable regulatory actions evolved. For example, in Facebook v. Duguid (2021), the Court clarified the definition of an automatic telephone dialing system as applied in the twenty-first century.

Bibliography

Brenner, Daniel L. Law and Regulation of Common Carriers in the Communications Industry. 2nd ed., Westview Press, 1996.

Dee, J. “'To Avoid Charges of Indecency, Please Hang up Now': An Analysis of Legislation and Litigation Involving Dial-a-Porn.” Communications and the Law, vol. 16, no. 1, 1994, p. 3.

Huber, Peter W., et al. The Geodesic Network II: 1993 Report on Competition in the Telephone Industry. Geodesic Company, 1992.

Kellogg, Michael K., et al. Federal Telecommunications Law. Little, Brown, 1992.

Purvis, Dara E. "Anti-Dial-a-Porn Act of 1989 (1989)." Free Speech Center, 9 July 2024, firstamendment.mtsu.edu/article/anti-dial-a-porn-act-of-1989. Accessed 20 Oct. 2024.

Samarajiva, Rohan, and Roopali Mukherjee. “Regulation of 976 Services and Dial-a-Porn: Implications for the Intelligent Network.” Telecommunications Policy, vol. 15, no. 2, 1991, pp. 151–64, doi.org/10.1016/0308-5961(91)90018-7. Accessed 20 Oct. 2024.

"What is the TCPA?" Contact Center Compliance, www.dnc.com/what-is-tcpa. Accessed 20 Oct. 2024.