Last fall, Congress passed — and the President signed — an emergency budget bill that opened up a loophole that allows federal agencies, and private companies working on the government’s behalf, to make debt collection robocalls. However, a recently released ruling from the Federal Communications Commissions makes it clear that the entire U.S. government is exempt from rules limiting the use of robocalls to American consumers, so long at it involves government business.
The Telephone Consumer Protection Act prohibits “any person” in the United States from placing robocalls “to any telephone number assigned to a… cellular telephone service… or any service for which the called party is charged for the call.”
A number of third-party government contractors petitioned the FCC, asking the agency to clarify the definition of “person” as used in the TCPA. Does it mean an individual? A corporation? The government? A contractor working on behalf of the government?
According to the FCC’s ruling [PDF], while the law applies to private individuals and businesses, the TCPA “does not apply to calls made by or on behalf of the federal government in the conduct of official government business, except when a call made by a contractor does not comply with the government’s instructions.”
The only other exception to that exemption is that the robocall must apply to government-related activities. Some Congressional staffer can’t just start blasting out pre-recorded, auto-dialed messages to people about how well she’s doing in fantasy football this season. That also means that in-office elected officials don’t enjoy the government’s blanket exemption to make campaign-related robocalls to cellphones.
At the heart of the FCC’s ruling is the recent U.S. Supreme Court decision in Campbell-Ewald Co. v. Gomez. In that case [PDF], a class of plaintiffs alleged that a telemarketing contractor for the U.S. Navy had violated the TCPA.
“The United States and its agencies, it is undisputed, are not subject to the TCPA’s prohibitions because no statute lifts their immunity,” wrote the court in its decision. The court also held that government contractors could enjoy derivative immunity from the TCPA if they are following the exact orders of the agency that contracted the company.
The three companies that petitioned the FCC for clarification on the TCPA represent a variety of telecommunications practices that had thus far existed in a legal gray area. One provider helps, among other things, elected officials set up so-called “tele-town halls,” where lawmakers can talk to their constituents. This company, Broadnet, was concerned that it might need to get express consent from each person involved in these calls.
Another company, RTI, is contracted out by federal agencies to do telephone research survey calls. It was concerned that these calls might be considered in violation of the TCPA because they were not being made by the government.
The third petitioner, National Employment, is a contractor for the Social Security Administration and is required through this contract to make certain calls to people receiving government benefits. It was asking the FCC to confirm that this sort of activity was exempt from TCPA prohibitions.
The FCC confirmed in the ruling that all three types of contracted operations are exempt, so long as the contractors are not straying from their directed duties.
“We emphasize that in each of these scenarios, a call placed by a third-party agent will be immune from TCPA liability only where the call was placed pursuant to authority that was ‘validly conferred’ by the federal government, and the third party complied with the government’s instructions and otherwise acted within the scope of his or her agency, in accord with federal common-law principles of agency,” reads the ruling.
While FCC Commissioner Jessica Rosenworcel concurred with the ruling, in a separate statement [PDF], she raised concerns about how this ruling will mesh with the FCC’s current process of trying to make rules for government debt-collection robocalls.
“[O]ur actions here have an odd result. In effect, we prejudge the outcome of our narrower proceeding under the Bipartisan Budget Act by here providing a blanket exemption from the Telephone Consumer Protection Act to the federal government and its agents,” writes Rosenworcel. “Moreover, I am concerned that our decision risks trampling on the will of Congress. After all, if the federal government is truly outside the scope of the Telephone Consumer Protection Act, it is unclear why Congress would need to have specifically provided a debt-related exception to the law in the first place.”
Taking a more pro-robocall stance was the always interesting Commissioner Michael O’Rielly, who argues in his statement [PDF] that state and local governments should also enjoy blanket exemption from the TCPA.
“Why is the Commission willing to say the Export-Import Bank is exempt but not the California Health & Human Services Agency, the Carson City Public Guardian, or the New York Department of Education?” writes O’Rielly. “Such arbitrary line drawing leaves state and local governments, and the people they serve, exposed to predatory TCPA lawsuits that divert tax dollars away from serving the public.”
FCC Chair Tom Wheeler did not issue an individual statement on this ruling, but a rep for the Commission writes in an email that “The Commission is committed to protecting consumers against unwanted calls to the extent permitted under the law. This ruling clarifies that the Commission interprets the law as excluding calls by the federal government or its agents from the TCPA. This is consistent with the interpretation clearly articulated by the Supreme Court in its recent ruling.”