Hi TCPAWorld! Remember last year when that political consultant from Texas hired the New Orleans magician to sound like Joe Biden in order to make calls using AI technology to New Hampshire voters in an attempt to convince them not to vote?
Well, that saga continues!
So for some background here, Steve Kramer, a political consultant, used AI technology to create a deepfake recording of President Joe Biden’s voice. Days before the New Hampshire primary, nearly 10,000 voters received a call in which the AI voice falsely suggested that voting in the primary would harm Democratic efforts in the general election. To further the deception, Kramer spoofed the caller ID to display the phone number of Kathleen Sullivan, a well-known Democratic leader. Voice Broadcasting Corporation and Life Corporation enabled the call campaign, providing the technology and infrastructure necessary to deliver the calls.
Steve Kramer, Voice Broadcasting Corporation, and Life Corporation in the US District Court of New Hampshire were sued on March 14, 2024, for violations of the TCPA (as well as violations of the Voting Rights Act of 1965 and New Hampshire statutes regulating political advertising) by the League of Women Voters of the United States, the League of Women Voters of New Hampshire, and three individuals who received those calls. League of Women Voters of New Hampshire et al v. Steve Kramer et al, No. 24-CV-73-SM-TSM.
Broadcasting Corporation and Life Corporation filed a motion to dismiss arguing 1) they did not “initiate” the at-issue calls and 2) these calls did not violate the TCPA because they were “’political campaign-related calls,’ which are permitted when made to landlines, even without the recipient’s prior consent.”
The court denied their motion on 3/26/25 finding that the plaintiffs adequately alleged a plausible claim for relief under the TCPA. League of Women Voters of New Hampshire et al v. Steve Kramer et al, No. 24-CV-73-SM-TSM, 2025 WL 919897 (D.N.H. Mar. 26, 2025).
The TCPA makes it unlawful “to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party.” While the TCPA does not specifically define what it means to “initiate” a call, the FCC has established clear guidance. According to In the Matter of the Joint Petition filed by Dish Network, Federal Communications Commission Declaratory Ruling, 2013 WL 1934349 at para. 26 (May 9, 2013), a party “initiates” a call if it takes the steps necessary to physically place it or is so involved in the process that it should be deemed responsible.
In this case, the court assumed, without deciding, that neither Voice Broadcasting nor Life Corporation physically placed the calls. But that didn’t absolve them. The court turned to the totality of the circumstances to determine whether the companies were sufficiently involved to bear liability.
The allegations were that Voice Broadcasting didn’t merely act as a passive service provider. Instead, it actively collaborated with Kramer to refine the message and even suggested adding a false opt-out mechanism that directed recipients to call Kathleen Sullivan’s personal phone number. Life Corporation, in turn, allegedly facilitated the delivery of thousands of the calls using its telecommunications infrastructure. The court found that these facts were more than enough to justify holding the companies accountable under the TCPA.
Quoting the FCC’s guidance, the court explained that companies providing calling platforms cannot simply “blame their customers” for illegal conduct. Liability attaches to those who “knowingly allow” their systems to be used for unlawful purposes. Voice Broadcasting and Life Corporation had the means to prevent the deepfake calls— but they didn’t. As the court explained, “Even if one were to assume that neither Voice Broadcasting nor Life Corp. actually ‘initiated’ the Deepfake Robocalls, they might still be liable for TCPA violations, depending upon their knowledge of, and involvement in, the scheme to make those illegal calls.”
As for the defendants’ second argument, that the calls were political and therefore exempt from the TCPA’s consent requirements, the court acknowledged that political campaign calls using regulated technology, such as the AI-voice technology used in the alleged calls, to landlines are generally permissible, even without prior express consent. However, this exemption is not a free pass. The calls must comply with other key provisions of the TCPA, including the requirement to provide a functional opt-out mechanism.
Here, instead of providing a legitimate way for recipients to opt-out, the alleged calls instructed the recipients to call Kathleen Sullivan’s personal phone number. This sham opt-out mechanism not only failed to meet TCPA standards but also contributed to the deception. The court had no trouble rejecting the claim that this constituted compliance: “Little more need be said other than to note that such an opt-out mechanism plainly fails to comply with the governing regulations and is not, as defendants suggest, ‘adequate.’”
And in case you are all wondering about Mr. Kramer himself, a default was entered against Kramer on 8/29/24.
The entire story behind these calls has been something to watch. This is definitely a case to keep an eye on!