TCPA class actions continue to plague companies around the country, but a recent FCC ruling means that one big caller doesn’t have to worry: the federal government, as well as its contractors.
On July 5, the Federal Communications Commission (FCC) issued a declaratory ruling that broadly exempted the federal government and its contractors from the requirements of the Telephone Consumer Protection Act, which include obtaining prior express consent before making most calls to mobile phones.
The FCC declared that the TCPA, which applies only to “persons,” does not apply to the federal government because of sovereign immunity and the legislative history of the word “person,” which is not generally understood to include the government. Furthermore, under the ruling, contractors of the federal government are also exempt from the TCPA’s requirements because they are working as agents of the government. They are exempt as long as they are acting within the scope of their contractual relationship with the government and if the government has delegated to them its prerogative to make the calls.
“If the TCPA applied to contractors calling on behalf of the federal government, this rule would potentially allow the government to be held vicariously liable for conduct in which the TCPA allows the government to engage,” the FCC stated in the ruling. “That would be an untenable result.”
Examples of calls that the FCC said were important for the federal government to make and that are traditionally handled by contractors included calls for “benevolent purposes” such as to conduct public policy surveys and to communicate with participants in federal programs such as Social Security.
This ruling by the Commission, while rational on its face, is curious when viewed against the fact that the agency has been, and continues to be, concurrently involved in a rulemaking mandated by Congress to write rules implementing a provision included as part of the 2015 Bipartisan Budget Act. That provision specifically exempts the federal government and its agents from the TCPA, but only for certain types of calls: those calls “made solely to collect a debt owed to or guaranteed by the United States.”
In its ruling, the FCC tried to account for the apparent inconsistency between the scope of the exception created by Congress and the far broader scope of the exemption created by the agency by stating that Congress adopted the debt collection exception because the Commission had not yet acted on the then pending requests for declaratory rulings that were seeking the more generous relief that the FCC granted this week. Congress’s amendment “served to guarantee that callers covered by the amendment would be exempted from the consent requirement no matter how the Commission eventually resolved the question in this proceeding,” the FCC explained.
However, under normal rules of statutory construction, an agency interpreting a duly enacted law would attempt to discern the intent of Congress and not the other way around. Congress, by specifically acting to exempt certain calls, made clear by implication that, in all other circumstances, the federal government was subject to the TCPA.
Of note, Commissioner Jessica Rosenworcel, a Democrat on the Commission and a strong advocate of vigorous TCPA enforcement, while concurring in the decision, questioned the logic of the way in which the Commission was proceeding in light of the open rulemaking mandated by Congress regarding the proper scope of the more limited exemption.
“So our actions have an odd result,” Rosenworcel said. “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.”
The FCC’s rulemaking must be completed by the Congressionally imposed deadline of August 2. Watch this space!