FCC Provides Clarity on TCPA Rules; FCC Democrats Partially Dissent
After arguments on a separate Telephone Consumer Protection Act case last week at the Supreme Court (see 2012080053), the FCC provided clarity Monday that contractors working for federal, state or local governments, plus localities themselves, must obtain consumer consent before making robocalls under the TCPA. The FCC clarified that “federal and state government callers, when acting in an official capacity, are not subject to the prior consent requirements of the TCPA.” Outgoing Commissioner Mike O’Rielly concurred. Commissioners Jessica Rosenworcel and Geoffrey Starks dissented in part (see 2012140028).
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“A federal contractor is a ‘person’ under section 227(b)(1)” of the TCPA, the order said. “We thus agree with [National Consumer Law Center] and those commenters that contend that section 227(b)(1) applies to federal contractors as ‘person[s],’ even when they are acting as agents of the federal government,” the agency said. “Congress has already weighed the balance between the privacy rights the TCPA is designed to protect and the ease and cost of robocalling,” the order said: “Congress could have exempted contractors of the federal government if it wished to do so.”
The regulator clarified that state government callers doing official business aren't within the meaning of “person” under the act: “Congress enacted the TCPA in 1991 understanding that its use of the word ‘person’ in that statute would not be presumed to include the federal or state governments. If Congress had wanted to subject state governments to the TCPA, it could have done so by expressly defining ‘person’ to include state governments.”
Starks and Rosenworcel dissented on that portion (see here and here). O’Rielly didn’t comment or issue a statement. “Where the law is at all ambiguous, and even if it may be a close call, I think this agency should side with consumers and their cry to cut down the number of robocalls they receive,” Rosenworcel said.
The order partially reverses a controversial 2016 declaratory ruling sought by Broadnet, which exempted calls made by or on behalf of the federal government as part of official business (see 1607060013). The company didn’t comment now.
The FCC granted a petition filed on behalf of more than 50 organizations, NCLC Senior Counsel Margot Saunders told us. “The petition largely requested clarification that contractors are persons and must be covered and will be continued to be covered under TCPA,” she said: “That is a significant finding that will help consumers, especially after the Supreme Court eradicated the exemption for debt collection calls, which were all made by contractors.” Saunders said it’s “unfortunate” the FCC provided relief for state callers. “We don’t think they had to do that,” she said: “There really wasn’t any state asking them to do that.”
Chairman Ajit Pai “has been vocal about his position on these TCPA government contractor issues for years,” noted Hogan Lovells’ Mark Brennan. "Perhaps the most important part of this decision is the FCC's clear statement that the extent to which federal contractors qualify for derivative immunity when making calls on behalf of the federal government is an issue for the courts, not the FCC, to decide,” he said: “The prior Broadnet ruling unnecessarily confused that issue." Brennan agreed with the finding on the states: The FCC “should be doing all that it can to support states that are trying to reach at-risk populations, especially during a global pandemic.”
Womble Bond’s Artin Betpera blogged that Congress or the FCC could provide new rules if the Supreme Court narrows the definition of automatic telephone dialing system based on last week’s oral argument in Facebook v. Duguid. “Many justices commented that the problem in the case seemed to arise from the fact that the TCPA was simply outdated due to evolution of communication technologies,” Betpera said. “The justices almost universally expressed concern over application of the TCPA to smartphones as a consequence of broadly interpreting the ATDS definition to encompass devices that dial from stored lists.”
The FCC took no position on “whether the TCPA’s restrictions on ATDS calls encompass automatically dialed calls to any list of numbers, not just calls to random or sequential numbers,” the issue before SCOTUS.