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FCC rules TCPA does not apply to calls made by or on behalf of the federal government
Are robocalls made by the federal government governed by the Telephone Consumer Protection Act?  The Federal Communications Commission just said “No,” in a pronouncement that has important implications for both the federal government and contractors acting on its behalf. 
 
The FCC made its pronouncement in a July 5, 2016 Declaratory Ruling, holding that the TCPA “does not apply to calls made by or on behalf of the federal government in the conduct of official government business. . .”  The FCC further made clear that the TCPA would not apply to contractors making calls on behalf of the federal government, “except when a call made by a contractor does not comply with the government’s instructions.” 
 
The FCC based its decision on its determination that the federal government is not a “person” as defined by TCPA section 227(b)(1), and therefore was not subject to the TCPA.  The FCC found support for this determination in the Supreme Court’s recent Campbell-Ewald Co. v. Gomez, 136 S.Ct. 663 (2016) ruling.  In Campbell-Ewald, the plaintiff claimed a government contractor had violated the TCPA by sending automated text messages to recipients who had not agreed to receive them.  The Court, applying sovereign immunity principles, held that the federal government and its agencies were not subject to the TCPA because “no statute lifts their immunity.”  The Court further held that government contractors generally may be eligible for derivative immunity, but that the contractor at issue in the case was not, because the contractor exceeded its authority by sending messages that the government had not authorized it to send.
 
In its declaratory ruling, the FCC noted that subjecting the federal government to the TCPA would “significantly constrain the government’s ability to communicate with its citizens” and to gather data necessary to make informed public policy decisions.  The FCC also found that allowing the federal government to use autodialers without consent would foster public safety and save resources by allowing the government to use the most cost-efficient method of communicating with the public.  According to the FCC, “if the TCPA were interpreted to forbid third-party contractors from making autodialed or artificial or prerecorded-voice calls on behalf of the government, then, as a practical matter, it would be difficult (and in some cases impossible) for the government to engage in important activities on behalf of the public.”  
 
With respect to contractors, the FCC sought to follow principles of agency and the Campbell-Ewald ruling.  The FCC stated that a contractor who places calls on behalf of the federal government will be exempt from the TCPA “when the contractor has been validly authorized to act as the government’s agent,” is “acting within the scope of its contractual relationship with the government,” and “the government has delegated to the contractor its prerogative” to make calls to “communicate with its citizens.”    
 
The FCC’s ruling provides welcome clarity to the TCPA’s scope, particularly as to its application to contractors.  The precise contours of its application remain to be seen, and it may well be that disputes arise as to whether a contractor was (or wasn’t) acting within the scope of its agency when it made particular calls.

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