Following up on earlier BoingBoing posts (one, two) about controversial military recruitment tactics: a 3rd US Circuit Court of Appeals ruling this week will allow colleges and universities to ban military recruiters from their campuses.
The government has been using a ten year old federal law called the Solomon Amendment which "requires law schools to express a message that is incompatible with their educational objectives.
Link to military.com story, Link to Washington Post coverage. Link to PDF of decision, including the 30 page dissenting opinion. (Thanks, PJ)
BoingBoing reader Mark Miller says,
"For anyone who has actually received such a pre-recorded call from the US Army, and is not on the Do Not Call List, such action is already illegal in it of itself, I discovered. Here's a link to the federal code that prohibits this activity. Personally, I plan to take civil action against the US Army. I encourage anyone else who has received such a call to do the same.
BoingBoing reader Brian Hagner, a student at University of Denver's Sturm College of Law, responds:
Mr. Miller claims the section of the US Code that is linked prohibits the automated phone calls by the US Army to be illegal. I believe if he had thoroughly read the exemptions listed under section (2) (B) of the linked section of the code, he would see that the Commission holds broad discretionary powers to exclude such automated calls from being held illegal under the code. It is well with in reason for the Commission to find a) that the US Army calls are not specifically of a commercial nature, or b) if they are deemed to be commercial calls, they do not infringe on the privacy rights of the recipients, and do not include unsolicited advertisement. While it seems obvious that these calls are advertisements, its entirely likely that they are ruled not to be advertisements, but rather fall into another category due to the nature of the US Army and the inherent necessity of recruiting people to our nation’s defense.
I enjoy reading the postings on BoingBoing, but just thought it unwise to encourage people to file suit against the US Army based on an incomplete reading of the US Code.
I enjoy reading the postings on BoingBoing, but just thought it unwise to encourage people to file suit against the US Army based on an incomplete reading of the US Code.
Reader Douglas Barnes (also a law student, but at the University of Texas School of Law) counters:
At the risk of turning BoingBoing into a legal debating club, I have to point out that Brian Hagner has misread the statute. He also neglected to check the implementing regulations to determine whether the hypothetical exemptions he suggests were implemented (for the reasons below, they weren't, but it's always good to check anyhow).
The ban on automated calls to cell phones is in 47 U.S.C. 227(b)(1)(A). At 227(b)(2)(B), it allows regulatory exemptions to 227(b)(1)(B). You'll notice they put a helpful forward pointer in 227(b)(1)(B) "or is exempted by rule or order by the Commission under paragraph (2)(B)."
There is another exemption, 227(b)(2)(C), which allows a regulatory exemption for calls "calls to a telephone number assigned to a cellular telephone service that are not charged to the called party . . ." More interestingly, there are sovereign immunity and related issues to work through, which I will spare the readers of BoingBoing.
And Mr. Hagner replies:
Douglas Barnes is absolutely correct in that the calls to cell phones are prohibited. I did not realize that the discussion was about calls to cell phones because the previous posts did not specify. After looking further, I realize that Mr. Barnes’s blog mentioned cell phones, but that was not specified any where else. I assumed we were talking about automated calls to phones in general.
