Victoria Kolakowski, The Unethical Choice for Alameda County Superior Court Judge, Tries to Argue That California Campaigns Can Hire Out of State Telemarketers to Do Illegal Robodialing

Vote No for Victoria Kolakowski(b) No person shall operate an automatic dialing-announcing device except in accordance with this article. The use of such a device by any person, either individually or acting as an officer, agent, or employee of a person or corporation operating automatic dialing-announcing devices, is subject to this article.

(a) Whenever telephone calls are placed through the use of an automatic dialing-announcing device, the device may be operated only after an unrecorded, natural voice announcement has been made to the person called by the person calling. The announcement shall do all of the following:

(1) State the nature of the call and the name, address, and telephone number of the business or organization being represented, if any.

(2) Inquire as to whether the person called consents to hear the prerecorded message of the person calling.

CALIFORNIA PUBLIC UTILITIES CODE SECTION 2871-2876

For the past few weeks I’ve been reporting on Alameda Superior Court Candidate Victoria Kolakowski’s illegal robodialing she is currently using as part of her unethical campaign for Alameda Superior Court Judge.

Kolakowski interrupted my son’s baseball game a few Sunday’s back when she illegally robodialed my cell phone with this recorded message by Oakland City Attorney John Russo.

Currently the California PUC (where Kolakowski is a sitting law judge sworn to uphold the law) regulates robodialing in the state of California. As you can see from the California code above, robodialing people in the State of California is explicitly illegal unless first introduced by an unrecored “natural voice announcement” asking if you will allow it. The fact that Kolakowski is a sitting law judge at the very agency that regulates illegal robodials (while using them herself) is troubling to me. Does Kolakowski think that she is above the law? And is this the sort of person we’d want as a Superior Court Judge?

Last week KCBS reported on Kolakowski’s illegal robodialing here.

Apparently the Kolakowski campaign has gotten back to KCBS claiming that “one interpretation of the law” is that her robodials are not “technically” illegal because she hired someone to make the calls from outside of the State of California. From KCBS’s update:

“Kolakowski says her calls, that feature the Oakland city attorney promoting her local candidacy, are being placed from outside California and thus outside CPUC jurisdiction. Under one interpretation of the law, that would make them legal.”

So let me see if I get this straight. Even though robocalls are *explicitly* illegal in the State of California, a law judge at the California PUC (the very agency that is charged with enforcing this law) thinks that it’s ok to hire some political hack to make illegal calls from outside of the state into the state?

So then under this logic all *any* company has to do to illegal robodial people in California is simply have the calls originate from out of state? So any California insurance company or bank or telemarketing scam selling auto warranties or carpet cleaning company or mattresses company or whatever, can just hire some company to start blasting millions of robodials into California homes and this is hunky dory? How fast do you think the California PUC would shut down an auto warranty scam from Arkansas targeting California seniors with illegal robodials?

The California Code to me is clear that not only can California businesses or corporations or campaigns not make illegal robodials, that agents on their behalf also cannot.

If *anyone* can simply pay to have their calls done from another state, this means that the California law does absolutely *nothing* to protect our privacy from these unwanted intrusions into our lives and homes. Under Kolakowski’s interpretation, our law has no teeth.

California businesses (including campaigns) should be subject to California law.

The fact that a current law judge at the PUC would try to twist the law this way is enormously offensive to me. But I suppose that’s just politics as usual. Politicians get to cheat and get away with it.

Even if one could argue this case on a technicality, the spirit of the California law is clear. It was enacted to protect Californians from these unwanted calls. I’m disappointed that Kolakowski would stoop to this low level and hope that you will join me in voting against her in the upcoming race for Alameda Superior Court judge. Our public servants should obey both the letter and the spirit of the law.

Update: On Slashdot here.

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30 Comments

  1. Christina says:

    I think it’s hilarious that this lady is campaigning to be a judge. If this is her way of doing things now, imagine what she’ll do if she gets appointed. Who knows how she’ll “interpret” other laws..

  2. prophead says:

    You have just caught her in a lie, there is no way her third-party company paid extra to have calls made from an out of state area code. Telemarketers are notoriously cheap, I promise you they cut corners here. Mr. D.A., please investigate this. This reaks of cover-up.
    pee-eww.

    Thanks TH for some great journalism, I forgot what it was like, it’s been so long.

  3. Brad Kile says:

    It’s clear this woman does not respect the law. Let’s vote her out and fine her for EVERY ONE call made by her robot. Let’s vote out anyone who campaigns on her behalf as well. Clearly they do not respect our wishes either.

  4. […] Judicial candidate Victoria Kolakowski used automated robodialing to call California voters, violating a law that the agency she works for enforces.  When asked, she said it’s not illegal.  Surprised? Check it out. […]

  5. […] PUC, is running for Alameda Superior Court judge in California. As part of her campaign she is robodialing people in California with a pre-recorded message. The only problem is that in Califorina robodials are actually illegal unless first introduced by a […]

  6. Oracle Guy says:

    Politician thinks the rules only apply to other people. News at 11! (On the other hand, at least we know who NOT to vote for.)

    Seriously, is this the kind of person you want as a judge…you know, someone who is supposed to *uphold* the laws?

  7. Dan says:

    My suggestion is to sue her after all she did break the law by calling you. If she in anyway made any effort in her current position to squash the lawsuit then she would be in even deeper trouble.

  8. GR says:

    Mr. Hawk,

    The prerecorded call went to your cellular phone. Consequently, it violated federal law at 47 U.S.C. sec. 227(b)(1)(A)(iii). You may sue the judge for $500, and you may treble those damages because she is intentionally making the calls. Unfortunately, the statute above only applies to cellular telephone calls and not to residential phones. It is a federal law with both interstate and intrastate scope; it matters not where the call originated. I’d go after both the candidate and the endorsing city attorney. If I were ambitious, I might try for an injunction against the candidate (who wants to continue the calls) and the professional TM (who should know it cannot call celluar phones).

    G

  9. Mr. Uh-oh says:

    Wow. She got slashdotted. This is going to be a real bad day for her!

  10. Thomas Hawk says:

    GR, thank you for that information. I wasn’t aware that robodialing a cell phone involved special penalties. I will try to track this down and see if I can sue her for this.

    Thanks.

  11. Eliot says:

    The KCBS update is titled “Calif. Law Does Not Prohibit All Candidate Robocalls”; what don’t you get, no law was broken, you were annoyed and now you’re using cyber-bullying tactics to voice your annoyance.

  12. Doug says:

    I love Californian law – I was a little disapointed that you didn’t warn me that you website may contain material that was identified by the state of California to cause cancer or birth defects, namely, the emission of radiation from the computer monitor, or heat from the laptop on my gonads…..

    What a bunch of crackpots :-)

  13. Thomas Hawk says:

    “Eliot,” in the spirit of transparency, how about you disclose what your relationship is to the candidate.

    The KCBS update cites Kolakowski’s interpretation of the law. If you read KCBS update what they say is that according to “one interpretation” of the law this would make them legal. Kolakowski is asserting that her calls are legal under “her” interpretation. There are obviously other interpretations.

    Whatever the case, the spirit of the law on robodialing is to stop these harassing and annoying calls from coming into our homes and cell phones. Something that Kolakowski doesn’t appear to want to honor.

    If you follow Kolakowski’s “interpretation” of the law to it’s logical end. Any company whatsoever could make millions of robo calls into California from Colorado. Aluminum siding companies, auto warranty companies, companies selling vitamin supplements, whatever. This law was enacted to stop these calls. Not to simply cause businesses to do their dialing from out of state. That is violating the spirit of this law on our books.

    I would argue that if this is how Kolakowski interprets laws though, the last place I’d like to see her is sitting on the bench in Alameda County where I live.

    you were annoyed and now you’re using cyber-bullying tactics to voice your annoyance.

    Cyberbullying? Why, for submitting a story of a hypocritical judge to Slashdot? That’s laughable. You call it cyberbullying. I call it free speech. Am I not allowed as a citizen to use every platform at my disposal to campaign against something that I feel is an injustice? There is no cyber bullying here. If people hate robodial calls at their homes and react badly to Kolakowski’s tactics and position that’s her problem, not mine. She should consider that choosing to go this route might involve backlash from people who oppose thee unwanted intrusions into our daily lives. You are right though. I certainly was annoyed when she interrupted my son’s baseball game on a Sunday afternoon with her crappy robodial.

  14. Currahee says:

    Yes, anyone there happen to know her phone number? If robodialing is legal from out of State … I live about 400 miles away and would love to give her my thoughts on the whole thing.

  15. Thomas Hawk says:

    Currahee, I asked her for her cell phone number so that i could talk to her about this, but she wouldn’t give it to me. She said that it was my fault that I got robodialed and that if I didn’t want to receive calls like this then I shouldn’t have put my phone number on my voter registration form.

    It is ironic that she feels that it’s ok to robodial and call me, but won’t give me her cell phone number back. I guess she doesn’t mind hassling other people but doesn’t want to be hassled herself. Hypocrite.

  16. Micheas says:

    IINAL, that said, you were undoubtedly called because you are registered to vote for or against her, which means that there is a voter candidate relationship between you and thus section 2872(f) reads:

    (f) This article does not apply to any automatic
    dialing-announcing device that is not used to randomly or
    sequentially dial telephone numbers but that is used solely to
    transmit a message to an established business associate, customer, or
    other person having an established relationship with the person
    using the automatic dialing-announcing device to transmit the
    message, or to any call generated at the request of the recipient.

    The key phrase is “…or other person having an established relationship…”

    Not, saying I approve of robocalls, or the current interpretation of the law, but the law does not say what you want it to say, (at this point in time.)

    The real insanity is that the judge could not point to the loophole, which probably makes her a lousy judge, as the poor that cannot afford $20,000 for basic representation of anything moderately complicated, are going to just get abused in her court.

    So, the judge is an idiot and should not be trashed because she made unethical robocalls, but she doesn’t know the law, and seems unable to do basic legal research that any first year law student could do. That is why she should be thrown off the bench.

  17. Thomas Hawk says:

    Micheas, I don’t think simply being a voter and her wanting my vote creates an “established” relationship. If you are a car owner and I sell scam car warranties, do we have an “established” relationship because you own a vehicle? Where is it stated a voter vs. candidate qualifies as an “established relationship?”

  18. Micheas says:

    Useful advice.

    Re register to vote and don’t put down your phone number.

    It will take a couple years for the robocalls to completely stop, as alameda charges $180 (IIRC,) per cd rom for voter files, so people tend to use old copies.

    Make sure that you check the box that you are updating your voter file, and fill out your current address, otherwise you will just be on the rolls twice.

  19. Micheas says:

    Sorry, I didn’t see your reply when I left my second message.

    The established relationship is the fact that they are applying for a job that you are responsible, in part, for the hiring decision.

    You can refuse to vote to hire them, but the ability to fire someone is viewed as an existing relationship.

    My, view is that robo calls are, as the law is today, legal, and possibly counter productive.

    They do tend to increase voter turnout, they do annoy people,

    For example, this conversation is the result of a robocall.

    From a campaign managers perspective, that is a good thing.

    The fact that the campaign didn’t do anything to explain how to stop the robocalls, and didn’t explain the loophole in the law, (that was put there so that they could continue to make political calls)

    Everyone just assumes that because candidate calls are legal, ballot propositions are also legal, I am not so convinced of that.

  20. Sylvia Caras says:

    I got a call from Mitt Romney for Meg Whitman. I filed an FCC complaint online. Where/how do I report this in California?

  21. Alex Feder says:

    Thomas, not only wouldn’t she give you her cellular number, apparently her office number has been removed from her website. Of course, once on the web, always on the web: http://politics.slashdot.org/comments.pl?sid=1676836&cid=32477312. No doubt she’s trying to avoid robodialers.

  22. Eliot says:

    “Thomas Hawk”, I find it amusing that because I think you’re going way overboard on this, I must have a relationship with Kolakowski. I don’t, reason and common sense is all I need to see that you’re being a bully. You talk of your free speech and yet you’re trying to limit hers, now that’s hypocritical, and your characterization of this as an “injustice” is laughable, thank goodness nuts like you don’t have any real effect outside of your own little echo chamber.

  23. John Halbig says:

    @Eliot: “…your characterization of this as an “injustice” is laughable, thank goodness nuts like you don’t have any real effect outside of your own little echo chamber.”

    Eliot is obviously not a fan of SlashDot — which is how I, as a fellow Alameda resident who specifically began to tell people NOT to vote for this Kolakowski person because of these very robo-calls, found this very useful post. Regardless of the law, if someone can’t seem to manage a campaign well enough to get real people to call me, then they can’t be a very good candidate.

    All robo-call “endorsements” tell me is that some yahoo I couldn’t give a fig about wants me to vote for a specific candidate. It doesn’t tell me what their stand is on the issues, which any decent volunteer could manage.

    Eliot is most likely one of the dozen or so volunteers that the alleged “judge” has managed to acquire — and whose responses mark him as a poor campaigner.

    At least I’ve already had the joy of voting against her — gotta love voting by mail! Everyone should do it!

  24. Thomas Hawk says:

    Eliot. I’m not trying to limit her free speech at all. She can say whatever she wants. She can comment here on my blog (unlike her I won’t censor here like she does on her Facebook page). She can take out advertisements on the radio or on TV. She can have her supporters put signs in their front yard. She can go down to the BART station and set up a little table and hand out literature. Whatever. Hell she can even get on the phone and call me with a live person.

    But robodials are illegal in California. The California PUC documents this. This law was put on the books so that we don’t have to be annoyed by recordings being blasted at us non-stop and interrupting our privacy and peace and quiet. For a law judge at the PUC to just completely disregard this law is not right.

    You may consider my blog an “echo chamber.” You may consider Slashdot an “echo chamber.” But I will tell you that I’ve personally heard from many other people who are Alameda County voters who have pledged not to vote for her over this issue and who have pledged to email their friends in Alameda County to inform them and suggest that they do not vote for her either.

    And even if I only take a single vote away from her, I still think that it is important to stand up for something that I believe in.

    People don’t like robodials. Kolakowski has a right to free speech, but that ought to end when it comes into my home. She can’t knock on my door and force her way into my living room with her person blasting a recorded call at me. She shouldn’t be able to do it with a telephone either. Fortunately we have laws on the books to prevent this. Unfortunately she chooses to disrespect the law and at best try to find loopholes around our laws. This is not a good quality in a judge.

  25. Jeff M says:

    The federal law cited earlier 47 U.S.C. 227(b) has no exemptions for established business relationship for prerecorded calls made to cellphones. Being a judge is not a business. Running to be elected judge is not a business. So it wouldn’t matter anyway.

    Additionally, in the regulations prescribed under 47 U.S.C. 227(c) there are additional rules regarding prerecorded calls. At 47 CFR 64.1200(b) you find two provisions that say you must identify the person or entity at the beginning of the call and provide a telephone number during or after the message. Many political calls violate one or both of these provisions. There are no exemptions of any kind for these provisions.

    To those who have commented that she has freedom of speech, these regulations do not infringe on that, she can say what she wants, but she has to obey the rules while she does. Try doing a protest march in your city without a permit and see what happens. The courts have ruled that certain restrictions on speech for time, place and manner are constitutional. I am currently suing United States Senator Bennett of Utah for violations of the regulations cited above. He’s already been tossed from his job by the state Republican Convention. If you feel the law has been broken, you need to do more than whine about it. Take her to court.

    If you take her to court on account of violations of the TCPA, she is likely to mount a defense that says they aren’t actionable because those rules were made pursuant to 47 U.S.C. 227(d) which doesn’t provide a private right of action as does subsections (b) and (c). The FCC was granted authority under subsection (c) which does have a private right of action. See subsection (c)(1)(E) which requires the FCC to propose regulations that implement the section which is all of 47 U.S.C. 227. Subsection (c)(2) then requires the FCC to implement the proposed rules. I am not a lawyer, so this information is not legal advice, is not intended to be legal advice. You should consult an attorney if you wish to pursue an action.

    Good luck.

  26. digitalFlack says:

    Something is fishy here. I live in Pleasanton (Alameda County) and have had dozens of robo calls from politicians and charities.

    I was under the impression that those two classes had been exempted from the telemarketing companies (mainly businesses) specifically for freedom of political and religious speech. Commercial business (advertising is not protected.)

    Her website claims endorsements from many judges, local mayors and the Sierra Club. I’m not seeing any back room Cheney style tricks, just a judge who was previously appointed and doesn’t have a clue about running for election.

    I did get one of the robo-calls from Kolakowski, and frankly the Sierra Club endorsement did get me to check into the candidate.

    There are plenty of things to complain about this primary season $65M to win a gubernatorial primary?

    In Pleasanton there is a real estate family spending a half million dollars to reverse a city proposition against their property, the opponents, a sad, sorry lot, has been able to raise about $6,000. I’m pretty sure money will speak pretty load at this end of the county too.

    Chicago kid, now in Alemeda

  27. […] California PUC, is running for Alameda Superior Court judge in California. As part of her campaign she is robodialing people in California with a pre-recorded message. The only problem is that in Califorina robodials are actually illegal unless first introduced by a […]

  28. Max Allstadt says:

    First of all, she didn’t break the law. This blog post itself acknowledges the fact that the calls weren’t illegal.

    Second, all this righteous indignation over a phone call is kind of absurd.

    What did you lose, 60 seconds, if that? One lousy talk time minute? And the reaction to this is to call for Kolokowski’s defeat in the election without any consideration whatsoever of her qualifications, who her opponent might be and what his qualifications are, and who’s endorsing who in this race… bizarre.

    I encourage voters to look at the records of the two candidates who will be in the runoff election this november. Look at their resumes. Watch a debate, because there will be one. And vote for a superior court judge based on the totality of the candidate, not based on the fact that Thomas Hawk had a tantrum about one phone call.

  29. voterN says:

    I just got a VM from some recorded dude asking me to vote for her, and the number shows up like this
    Denver CO (13033530612)
    Still at it I guess.

  30. Jon says:

    I got a robocall from her again this election season. The thing that bothers me most about this isn’t the calls, but the fact that she exploited a legal loophole in order to gain an advantage over the other candidates. That seems sleazy, underhanded, and disrespectful of the law. This disrespect for the law that she is supposed to be upholding speaks directly to her qualifications for judge. I want a judge who respects the law, not one who creatively interprets it to her own advantage. Therefore, I will not be voting for Victoria Kolakowski.