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By Lydia Beyoud
July 6 — The federal government and its contractors have broad immunity from fines related to robocalls, based on congressional intent and a recent U.S. Supreme Court decision, the Federal Communications Commission has decided.
The FCC issued a declaratory ruling late July 5 in response to three petitions from Broadnet Teleservices LLC, the National Employment Network Association and RTI International seeking clarification about whether the definition of “persons” that can be fined for robocalls under the Telephone Consumer Protection Act of 1991 applies to federal contractors.
The ruling noted that three House lawmakers filed in support of one of the petitions, stating that the goal of the TCPA “has never been to impede communications from the federal government, especially those that gather data for important government research.”
The FCC's decision recognizes the TCPA's impact on free speech, Eric Troutman, an attorney at Dorsey & Whitney LLP who defends clients in TCPA cases, said in a statement.
“In supporting its ruling exempting the federal government from the TCPA’s coverage the Commission notes that ‘subjecting the federal government to the TCPA’s prohibitions would significantly constrain the government’s ability to communicate with its citizens',” Troutman said.
Three commissioners raised concerns with the ruling, including Democrat Jessica Rosenworcel, who questioned the “odd result” of granting blanket immunity at the same time that the FCC is trying to wrap up a congressionally mandated effort to more narrowly exempt federal contractors working to collect federally-backed student loans and mortgage debt.
The companies' clients included the Centers for Disease Control, the Social Security Administration and members of Congress organizing telephone tele-town hall meetings.
The agency quoted the Supreme Court's decision in Campbell-Ewald Co. v. Gomez, S. Ct., 136, decision 1/20/16 that the “United States and its agencies, it is undisputed, are not subject to the TCPA's prohibitions because no statute lifts their immunity.”
Troutman said the ruling is significant because the FCC has previously suggested the robocalling law doesn't burden or chill free speech.
“Yet the Commission now states ‘[i]f the federal government were prohibited from making autodialed or prerecorded- or artificial- voice calls to communicate with its citizens, it would impair—in some cases, severely—the government’s ability to communicate with the public',” Troutman said.
Rosenworcel concurred with the ruling, but said it effectively prejudges “the outcome of our narrower proceeding” initiated by an amendment to the 2015 Bipartisan Budget Act instructing the FCC to exempt some federal contractors from TCPA penalties after the commission tightened the rules earlier that year. The FCC has until Aug. 2 to complete the rulemaking mandated under the budget bill provision.
The agency may have contradicted congressional intent, Rosenworcel said.
“If the federal government is truly outside the scope of the [TCPA], it is unclear why Congress would need to have specifically provided a debt-related exception to the law in the first place,” she said.
The commission's two Republicans raised other concerns. Ajit Pai agreed that the federal government is exempt from the law, but not its contractors. Contractors are “persons” as defined by the TCPA, he said in a statement approving in part and dissenting in part from the commission's ruling.
Pai also said the Campbell-Ewald Co. decision indicates federal contractors should be liable under the TCPA.
Michael O'Rielly said the ruling should have extended the exemption to state and local authorities as well. “The Declaratory Ruling does not even commit to a timeframe for addressing state and local government calls,” he said.
O'Rielly called for the FCC to provide an answer so that “all impacted parties can plan or act accordingly, or seek appropriate remedy.”
Leaving the issue in regulatory limbo for the foreseeable future “will potentially expose state and local governments to liability while doing nothing to assist consumers,” he said.
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Text of the declaratory ruling and commissioners' statements is at http://src.bna.com/gxL.
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
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