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FCC Clarifies Application of TCPA to Government Contractors

Fashion-person-woman-handBy Alexander M. Smith

In response to a petition filed by Broadnet Teleservices LLC and two other government contractors, the FCC issued a ruling on July 5, 2016 clarifying that “the TCPA does not apply to calls made by or on behalf of the federal government.”  Drawing upon a longstanding presumption that the statutory term “person” does not apply to governmental entities, the FCC first concluded that the TCPA’s prohibitions on automated phone calls—which apply only to “persons”—do not apply to the federal government itself.  Acknowledging that the Supreme Court rejected categorical TCPA immunity for government contractors this year in Campbell-Ewald Co. v. Gomez, the FCC nonetheless concluded that federal contractors “enjoy derivative immunity to the extent they act under authority ‘validly conferred’ by the federal government and in accord with the government’s instructions.”   

As Law360 reports, some consumer advocates have urged the FCC to reconsider its position.  The National Consumer Law Center filed a brief last month on behalf of dozens of legal aid and consumer advocacy organization urging the FCC to stay and reconsider its ruling.  Consumers Union (the advocacy arm of Consumer Reports) submitted a letter to the FCC last week in which it argued that this ruling “will lead to an increase in unwanted calls to consumers from federal government contractors,” which are “costly for many consumers” and “compromise their privacy.”  The FCC has not yet responded.