Back on May 24 Slate reported on some more GOP jiggering in government in the realm of “ringless voicemail,” wherein a couple of companies have devised a method for inserting messages into your voicemail without ringing your phone first. While actually not strictly a new technology, the FCC has been asked if this is legal, and the Republican National Committee has weighed in on the matter:
The FCC has been asked to address the legality of ringless voicemail robocalls before. In 2014, a company called VoAPPs filed a proposal similar to AATM’s that asked the agency to “conclude that delivery of a voice message directly to a voicemail box…does not constitute a call.” The FCC hasn’t yet issued a ruling. According to its Friday FCC comment, the RNC’s case for ringless robocalling also rests on the First Amendment. “Political organizations like the RNC use all manner of communications to discuss political and governmental issues and to solicit donations — including direct-to-voicemail messages,” the comment said. “The Commission should tread carefully so as not to burden constitutionally protected political speech without a compelling interest.”
This all leads to the interesting question of when is uninvited political speech appropriate. I cannot help but note the flip side to the RNC‘s First Amendment argument – I cannot be forced to listen to political speech; that is coercion.
However, they may argue that this is not coercion, since I can delete those messages which contain political speech upon identifying them as same. There may be a hole in this defense, though: voicemail is a limited resource, and people will find it objectionable to lose potentially valuable messages when their voicemail is clogged up with undesired political speech. Critical messages may result in lost lives in some scenarios.
So when IS uninvited political speech appropriate? I have no idea if this would fly with SCOTUS, but I suggest we divide the communications channels into three groups: public, dedicated, and private.
Back at the time of the founding, private channels generally consisted of conversation and the occasional couriered message; while there were some mail services available, my impression is that they weren’t available to the average private citizen. Today, they are more varied – the now nearly antiquated post office, e-mail, phone conversations (an extension of the original private conversation), and, I would assert, voicemail, which has traditionally acted as a backup for phone conversations.
A dedicated channel would include theatre, cinema, and allied purposes. The audience attends voluntarily, prepared – presumably – for the content of the communications. It may or may not be political (although I suspect the folks at the RNC and DNC would be quick to think, and even assert, that everything is political, in that queer old way of believing everyone is interested in politics, despite endemic evidence contrary), but it is voluntary. This may distinguish from the public channel in that the audience capacity is quite limited and may pay for the privilege.
The final channel is where I would assert uninvited political speech is appropriate – the public channels. Returning to the days of the Founding of the Republic, this would have consisted of political posters pasted to the walls of buildings (today, telephone polls) and speeches in public spaces, such as taverns, churches, and parks. Today, churches (at least those wishing to retain their tax free status) have been replaced by the technologies of radio and television, as well as the cable and Internet versions of same. These, once again, retain their element of voluntariness – I am rarely forced to listen to the radio or watch the television. In fact, I might argue that the attendance on channels in this category constitutes an invitation to political speech.
The RNC‘s assertion that ruling against them would be a burden is, to my eyes, incorrect. Uninvited political speech on a private communications channel is clearly not a constitutionally protected speech – because it is not invited by the owner of the voicemail. There is no requirement of citizens to listen to every political communications blared out by those seeking power, after all. But the RNC is trying to slip that assertion by when it’s clearly false.
I’m also somewhat bemused, or amused, or even just mused, by this statement:
Ringless robocall technology is a boon to businesses and marketing agencies, expanding the number of consumers they can reach while saving them time, money, and regulatory hassle.
I must wonder about the metric involved. Is it as simple and misbegotten as number of consumers contacted? Is there no attempt to calculate a ratio of consumers positively affected to consumers enraged? I suspect that this ratio approaches zero rather rapidly, much to the dismay of the users of the technology. If they knew. I suspect there’s no attempt to achieve such measurements, as they might be a little hard and, in any case, would endanger profitability.
Honestly, I see the RNC‘s assertion to actually be a little amateurish – not only from a common-sense point of view, but even from the idea of actually using that technology. But they’ll do what they want to do, and damn the consequences.
