The order, published in the Federal Register, requires prior express consent under the TCPA for government contractors contacting consumers.
2/12/2021 11:00
The Federal Communications Commission finalized an order on reconsideration on Friday ruling that government contractors must have prior express consent before they contact consumers. The order reverses its 2016 Broadnet Declaratory Ruling, which found that federal contractors are not considered “persons” under the Telephone Consumer Protection Act. In the Order on Reconsideration, the FCC determined that the restrictions of the TCPA do apply to government contractors. The FCC also clarified that state and federal government callers are still exempt from the TCPA, but local government callers are not. The effective date of the Order on Reconsideration is Feb. 12, 2021.
The order, published in the Federal Register, stems from reconsideration of the Broadnet Declaratory Ruling and reverses the FCC’s previous order to the extent that it provided that a federal contractor making calls on behalf of the government was not a “person” subject to the restrictions in section 227(b)(1) of the Telephone Consumer Protection Act, ACA International previously reported.
“[The] order reconsidered a 2016 interpretation of the Telephone Consumer Protection Act adopted by the prior FCC that allowed federal contractors to robocall consumers without their prior express consent. The order on reconsideration confirms that contractors working for federal, state, or local governments—along with local governments themselves—must obtain consumer consent before making robocalls,” according to a news release from the FCC.
The FCC also clarified that “a state government caller making calls in the conduct of official government business is not a ‘person’ subject to section 227(b)(1) of the TCPA, while a state or local government contractor, like a federal contractor, is a ‘person’ and thus not exempt … and a local government is a ‘person’ subject to the TCPA,” according to the order.
Essentially, the federal government is not a person and therefore is not subject to the TCPA and a federal contractor is a “person” and therefore is subject to the TCPA.
The order does alter or impair the ability of contractors to invoke derivative immunity from liability when making calls on behalf of the federal government.
This will depend on whether the contractor took the steps necessary to physically place the call and whether another person or entity was so involved in placing the call as to be deemed to have initiated it, considering the goals and purposes of the TCPA.
Additionally, according to the order:
- State governments are not “persons” and therefore not subject to the TCPA.
- Local government entities, including counties, cities and towns, are “persons” and therefore are subject to the TCPA.
- State and local government contractors are “persons” and therefore are subject to the TCPA.
Of note, when the order was first released in December 2020, the FCC stated:
“The commission also clarified that federal and state government callers, when acting in an official capacity, are not subject to the prior consent requirements of the TCPA. Today’s ruling does not supersede the commission’s prior emergency calls exemptions, which apply to calls like those providing critical pandemic information. The decision is the latest commission action to protect consumers from unwanted robocalls. Other recent actions include empowering telephone companies to block illegal and unwanted robocalls before they reach consumer phones and adopting rules to restore trust in Caller ID information.”