Commerce Entreats FCC To Retain Government Contractor TCPA Immunity

As the Federal Communications Commission (“FCC” or “Commission”) continues to wrestle with post-ACA International TCPA issues, the US Department of Commerce suddenly has weighed in on the continued immunity of government contractors from TCPA exposure as “non-persons” under the statute.

The Commission decided that to be the case in its Broadnet Declaratory Ruling in 2016. But in 2018, in the aftermath of the ACA decision, the agency , at the urging of the National Consumer Law Center, asked whether it should “reconsider” Broadnet and “clarify that federal government contractors, regardless of their status as common-law agents, are ‘persons’ under the TCPA.”

Now, almost  a year since the FCC posed that question, the Secretary of Commerce has strongly urged the Commission not to backpedal on Broadnet, asserting that “a reversal of the Commission’s decision would have a devastating impact on Federal agencies that use contractors to complete critical missions, particularly the Census Bureau as it approaches the decennial census in 2020.” A primary concern is the ability to make calls to cellphones, which “will be particularly important [to the Bureau] in reaching hard-to-count populations, many of whom do not have landline telephones.”

Interestingly, the Secretary seeks to preserve the protection of Broadnet despite reporting that the “Census Bureau and its contractors would use a live agent to call specific numbers provided by respondents to the Census Bureau staff.” No autodialers, at least as defined on the face of the statute, will be used (i.e., no use of a “random or sequential number generator to dial phone numbers”). Again, “live agents” will be calling respondents who have provided numbers to call.

In the face of these facts, it would appear that the need for preservation of the Broadnet immunity rationale must be related to other aspects of the Census efforts, other Commerce Department calling plans, or shelter from suits against contractors. However, the Secretary’s letter remains mum on that score.

Bottom line demand: the Secretary urges the Commission to “take swift and decisive action to reaffirm” Broadnet or, if there is an FCC reversal, to “clarify that the planned Census Bureau telephone operations would not violate the TCPA.”

Is the National Telecommunications and Information Administration, the Commerce Department component that represents the Executive Branch before the FCC on telecom matters, trying to read the FCC tea leaves on the subject of Broadnet reconsideration? Thus this high-level Secretarial letter out of the blue?

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