Politicians making “robocalls” to cell phones without a voter’s written permission are violating federal restrictions on using telephone equipment

Ohio's Attorney General created a task force in 2020 that accepts complaints from state residents about unwanted robo callers

CLEVELAND, OH – It’s the election season in Ohio and you’ve received a “robocall” from a candidate for elected office you’ve never met or given your cellular telephone number.  The call violates Title 47 of the United States Code, Section 227 under the heading “Restrictions on use of telephone equipment.”  The specific language prohibiting the political robocalls is found at 47 U.S.C. 227(b)(1)(A).  There’s a section in the law that authorizes victims of robo calls to sue for $500 per call.

“b)Restrictions on use of automated telephone equipment.  (1)Prohibitions.  It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States (A)to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice.”

There’s more to the federal law because it’s lengthy and contains a provision that landline calls are “somewhat” okay.  It’s full of details on when and how robocalls can be made that if you received one without giving the candidate or his or her campaign committee written permission you know they’re violating laws.

Michael Smedley and East Cleveland Mayor Brandon King have taken robocall campaigning under the guise of a robocall town hall meeting to a new art form. The lawful way for King to contact residents about his town hall meetings would be for those visiting city hall or East Cleveland’s website to sign up and opt-in for the call. A call list would be created that’s a public record. The mayor would draft and then ask council to enact an ordinance that seeks to achieve his goal while protecting the privacy of the callers in compatibility with the federal Privay Act of 1974 and the privacy protections in relevant telecommunications laws. The process would be deliberative, thoughtful and educational because it would occur in a public meeting with resident comment. Voters would have the final say with an opportunity to decide through referendum whether the mayor’s desire to robocall them by ordinance is what they want. Since King and Smedley didn’t follow a lawful process, the resident phone numbers they’ve already been calling are a public record available to anyone who requests them for copying costs of 5 cents a page. They decided that since King was the mayor and he wanted to communicate with his subjects that he could robocall them while spreading his name around the city. Should a slick telemarketer with lawyers smarter than Willa Hemmons take the city to court to obtain resident telephone numbers the two officials have no legal authority to say no and will have to admit they criminally engaged in dereliction of duty.  It also makes the conspiratorial pair personally liable for the $500 per call in damages to which every complaining caller is entitled.

A smart voter might question the knowledge of a candidate who’s made unsolicited calls or texted them an advertising message as unfit for public office.  If they violate laws while campaigning they’ll violate laws in office.

Even “town hall” meetings elected officials are using robocalls to announce are unlawful without the resident’s up front written consent.  All elected and appointed jobs require the office holder or public employee to know and discharge only the “written down” duties of a public office.  In Ohio the duties of all state and local elected officials are found in the Ohio Revised Code free and online.

Here’s why this is important.

Every candidate seeking elected office in Ohio is going to be administered an “oath of office” pursuant to Section 3.22 of the Ohio Revised Code that in essence is a pledge to enforce our constitutions, obey our laws and to discharge the duties of an elected office as they are spelled out in plain English either in federal, state or local “codes.”  Section 3.22 reads as follows and notice the use of the word “shall.”  Whenever that word is contained in a law the person or official who it “instructs” has no other choice but to obey the instructions as written without deviation or added interpretation.

“Each person chosen or appointed to an office under the constitution or laws of this state, and each deputy or clerk of such officer, shall take an oath of office before entering upon the discharge of his duties. The failure to take such oath shall not affect his liability or the liability of his sureties.”

The “content” or language of the mandated oath of office is found in Section 3.23 of the Ohio Revised Code.

The oath of office of each judge of a court of record shall be to support the constitution of the United States and the constitution of this state, to administer justice without respect to persons, and faithfully and impartially to discharge and perform all the duties incumbent on the person as such judge, according to the best of the person’s ability and understanding. The oath of office of every other officer, deputy, or clerk shall be to support the constitution of the United States and the constitution of this state, and faithfully to discharge the duties of the office.

A candidate seeking the job of a mayor or a member of council has a special oath of office they’re required to be administered and a place they’re supposed to be filed within 10 days after assuming the “office.”  The authority for this mandatory duty is found in Section 705.28 of the Ohio Revised Code.

Every officer of a municipal corporation and every employee holding a position upon an annual salary, before entering upon the duties of his office, shall take and subscribe to an oath or affirmation, which shall be filed and kept in the office of the clerk of the municipal corporation, that he will:  (A) Support the constitution of the United States and of this state, and the charter and ordinances of the municipal corporation; (B) Not be influenced by any consideration except that of merit and fitness in the appointment or discharge of employees; (C) Not make or authorize the expenditure of public money otherwise than for adequate consideration and efficient service to the municipal corporation; (D) Faithfully, in all other respects, discharge the duties of his position or office.

I enlarged the words “before entering upon the duties of his office” so this mandatory duty wouldn’t be missed.  Any elected official or public employee who started working before they were administered an oath of office didn’t have the authority to work.  After 10 days of working without an oath of office the job is “vacated” whether the elected official or public employee worked or not.

Whether elected or appointed public officials are supposed to stop working because they “forfeited” the job by not taking the oath. The vacated office may then be filled in the manner prescribed by law.

The bottom line for the elected jobs candidates are seeking is that they come with either “law enforcement” or “law making” duties and authority.  These are the citizens who want the responsibility of defending your constitutional rights and are promising to enforce the laws on the books and those they write that hold you accountable, fairly. while they’re disobeying laws to help their campaigns.

They want to be “in charge” of city hall, a court, a school district, a county, a state or the federal government.  No matter the promises they make even as a candidate they’re a public official with a duty to obey federal, state and local laws they can’t alter.  And that’s even as a candidate.

The robocall you received is the candidate disregarding and altering Title 47, Section 227 of the United States Code because you didn’t give them your cell phone number and written or “opt in” permission to make a prerecorded call.  Keep in mind the entire “oath” conversation where candidates and elected officials “shall” swear to act constitutionally and lawfully.  The call is evidence of a federal crime for which they’re supposed to be held accountable.

Since the offenders are often candidates for federal office, like Congress, voters can easily see why the nation’s 435 federal law makers made the offense civil instead of giving themselves jail time.

So when you receive the robo call you have to ask yourself if this fledgling law breaker is who you want on your court, as a prosecutor, a mayor, a member of council or Congress overseeing your income tax dollar expenditures or protecting your constitutional rights?  Is a law breaker the right person to oversee a police department?

Last year Ohio Attorney General David Yost launched a robocall hotline and created an enforcement unit to try and enforce the law against spamming and scamming violators.  The Ohioans with cell phones and land lines among the 11.7 million inhabitants of our state were hit with over 2.2 billion calls in 2019.  That’s 18.8 calls per person, annually, and we all know the estimate is inaccurate.

Pissed off Ohio residents can text ROBO to 888111 and answer a few questions.  They can file an online complaint at ohioprojects.org or by calling 800-282-0515.

If you get a call confront the candidate about their robocalling publicly at campaign forums.  Call their campaign office.  Ask them to stop on their social media pages.

The single most difficult problem we have in government is elected officials enforcing laws against “the people” while excusing the crimes they and their relatives, friends and supporters commit to get them elected or to benefit themselves and each other after they’re elected.

Eric Jonathan Brewer

Cleveland's most influential journalist and East Cleveland's most successful mayor is an East Saint Louis, Illinois native whose father led the city's petition drive in 1969 to elect the first black mayor in 1971. Eric is an old-school investigative reporter whose 40-year body of editorial work has been demonstrably effective. No local journalist is feared or respected more.

Trained in newspaper publishing by the legendary Call & Post Publisher William Otis Walker in 1978 when it was the nation's 5th largest Black-owned publication, Eric has published and edited 13 local, regional and statewide publications across Ohio. Adding to his publishing and reporting resume is Eric's career in government. Eric served as the city's highest paid part-time Special Assistant to ex-Cleveland Mayor Michael R. White. He served as Chief of Staff to ex-East Cleveland Mayor Emmanuel Onunwor; and Chief of Communications to the late George James in his capacity as the Cuyahoga Metropolitan Housing Authority's first Black executive director. Eric was appointed to serve as a member of the state's Financial Planning & Supervision Commission to guide the East Cleveland school district out of fiscal emergency and $20 million deficit. Former U.S. HUD Secretary Alphonso Jackson told Eric in his D.C. office he was the only mayor in the nation simultaneously-managing a municipal block grant program. Eric wrote the city's $2.2 million Neighborhood Stabilization Program grant application. A HUD Inspector General audit of his management of the block grant program resulted in "zero" audit findings.

As a newspaper publisher, Eric has used his insider's detailed knowledge of government and his publications to lead the FBI and state prosecutors to investigations that resulted in criminal prosecutions of well-known elected officials in Ohio; and have helped realign Cleveland's political landscape with the defeat of candidates and issues he's exposed. Eric's stories led to the indictments of the late Governor George Voinovich's brother, Paul Voinovich of the V Group, and four associates. He asked the FBI to investigate the mayor he'd served as chief of staff for public corruption; and testified in three federal trials for the prosecution. He forced former Cuyahoga County Coroner Dr. Elizabeth Balraj to admit her investigations of police killings were fraudulent; and to issue notices to local police that her investigators would control police killing investigations. Eric's current work has resulted in Cuyahoga County Judge John Russo accepting the criminal complaint he guided an activist to file against 24 civil rights-violating police officers in the city he once led for operating without valid peace officer credentials. USA Today reporters picked up on Eric's police credentials reporting from his social media page and made it national.

Eric is the author of of his first book, "Fight Police License Plate Spying," which examines the FBI and local police misuse of the National Crime Information Center criminal records history database. An accomplished trumpet player and singer whose friendship with Duke Fakir of the Four Tops resulted in his singing the show's closing song, "Can't Help Myself": Curtis Sliwa of New York's Guardian Angels counts Eric among his founding chapter leaders from the early 1980's role as an Ohio organizer of over 300 volunteer crime fighters in Cleveland, Columbus and Youngstown, Ohio. For his work as a young man Eric was recognized by Cleveland's Urban League as it's 1983 Young Man of the Year.

Known in Cleveland for his encyclopedic knowledge of government and history, and intimately-connected with the region's players, every local major media outlet in Cleveland has picked up on one of Eric's stories since 1979. There is no mainstream newspaper, television or radio outlet in Cleveland that does not include an interview with Eric Jonathan Brewer in its archives over the past 40 years.

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