Hello, Concord, Mass.

A message from J.R. Getsinger

“Cable industry declares war on Article 34,” said the Concord Journal headline on Thursday April 22, 2004. “It’s the same stuff we saw them use in other towns, such as North Attleboro,” the director of the Municipal Light Plant was quoted as saying.

www.townonline.com/concord/index.html

But they, whoever they are, have stooped to dirty tricks. They have telemarketers calling and misrepresenting themselves as calling on behalf of the Town or of the Light Plant, which both deny it.

“Capable of repetition yet evading review,” I say.

Here’s a mockup Harvard Law exam question I made up to explore the issues. Please let me know what you think. One goal is to identify who paid for the telemarketing. Another is to obtain full disclosure of who’s providing commercial funding.

Vote for Article 34. Improved service and fair billing practices are one good reason. More basically, it takes a primary channel of political communication now controlled by the commercial sector back into the public sector where it belongs.

Harvard Law School                                                                                Mid-Term Exam (Spring 2004)

                                                      Law and the Political Process

Situation 3. Commercial Speech Intended to Influence the Outcome of Local Democracy.

Facts.

In a Massachusetts town holding the annual town meeting in 7 days, a telemarketing firm calls hundreds of several thousand households with a survey obviously intended to influence voters against passage of Article 34. The telemarketers represent they are calling alternately on behalf of the Town or on behalf of the Town's Municipal Light Plant, or both, all of which are untrue. They continue until there are only 3 days left, a Saturday, a Sunday, and the Monday of the first evening of the town meeting. They refuse to disclose the identity of the customer paying for the biased survey.

Article 34 proposes to authorize the 100+year-old Municipal Light Plant to provide telecommunications services to residents. Town meeting voted such authority last year, but state law requires a second vote to enable its authority.

On T minus 30 many residents receive a mass mailing from an Institute claiming it did a study and requesting donations. Then on T minus 10 a second mailing reaches most of the town’s households. And on T minus 7 really emotional arguments are made in a third mailing. The mailings are of an expensive nature requiring editing, design, and 4-color processes to produce.

An editorial in the local paper reports that some or all of the funding for the handbills and telesurvey came from a cable industry association located in Boston. The president of the association refuses to disclose where the money came from to fund the activity.

Now on T minus 3 there are two websites, www.noto34.info [subsequent to Concord's successful vote against them, 'BlastCom' has obliterated noto34.info] and www.citizensfor34.org. Somebody nameless set up the professionally designed No site weeks ago, and some citizens belatedly set up the austere Yes site just today [in fact, on Sat, Apr 24, 2004].

The town has previously granted a license to BlastCom, a major national cable company, as the sole provider of its TV and Internet services. Most people in town believe BlastCom is behind the mailings, telesurvey, and website.

Because a large percentage get their broadband access through BlastCom, a few townspeople worry that if BlastCom is behind the political barrage, BlastCom may be conducting illicit surveillance on their email and website activities, or that web services will be partially or completely curtailed. A few report privately that they have refrained from e-communicating certain ideas centrally relevant to Article 34 to others as a result.

Now there is only one business day left before Town Meeting begins.

Questions.

• To what extent must BlastCom disclose any involvement in local political processes?
• Assume BlastCom has provided all funding for the industry group, which in turn has provided all funding for mailings, telesurvey, and website. Must BlastCom make any disclosure now? If so, what must it disclose and to whom?
• Assume BlastCom has funded the deceptive telesurvey. Does a misrepresentation violate State or federal election or lobbying law? If so, what sanctions are available?
• Assume the telesurvey called phones on the Do Not Call list. Those called are prepared to testify under oath that the caller untruthfully said they were from or on behalf of the Town or its Light Plant. If BlastCom or the industry group it supports financed the telesurvey, has BlastCom violated the Do Not Call law?
• Assume the facts in 5. A state criminal statute prohibits commercial enterprises from seeking to increase demand for their services by placing any falsehood before the public by any means. Has BlastCom violated the statute? Does a claim it was political activity take it outside the statute? List applicable civil penalties State and federal.
• Does power to affect the outcome of a town meeting violate antitrust laws?

Disclosure.

This is not a real exam. If it really were from Harvard Law School, an institution I love, it would be shorter and tougher and bearing the name of a nationally known law professor.

On the other hand, this is a real live and kicking political situation. Town Meeting begins at 7:00 PM on Monday, April 26, 2004. Be there or be square.