FCC Issues Order on Prior Express Consent for Government Contractors
The order provides clarification on entities subject to the TCPA.
FCCNewsTCPAAdvocacy
The Federal Communications Commission issued an order on reconsideration Monday ruling that government contractors must have prior express consent before they contact consumers, according to a news release from the FCC.
The order 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 TCPA.
"Today's 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," the news release states.
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.
Commissioner Michael O'Rielly concurred with the order and Commissioners Jessica Rosenworcel and Geoffrey Starks approved in part and dissented in part. Rosenworcel and Starks issued statements on the order, available here.
The FCC's news release continues:
"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."
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