In 2016, the Federal Communications Commission (FCC) found that the term “person” in Section 227(b)(1) of the Telephone Consumer Protection Act (TCPA) did not include the Federal government or agents acting on its behalf. At that time, the agency “clarified that a government contractor that places calls on behalf of the federal government may invoke the federal government’s immunity from the TCPA ‘when the contractor has been validly authorized to act as the government’s agent and is acting within the scope of its contractual relationship with the government, and the government has delegated to the contractor its prerogative to make autodialed or prerecorded- or artificial-voice calls to communicate with its citizens.’” Thus, under such circumstances federal contractors were exempt from the prior express consent requirements of Section 227(b)(1). State and local governments and their contractors were not included. Two petitions for reconsideration (Petitions) focused primarily on the contractor clarification exemption followed.

Fast forward some 4+ years. In an Order on Reconsideration (Order) released on the eve of a change at the helm of the FCC (December 14, 2020), the agency has addressed the Petitions and related TCPA-scope issues (https://docs.fcc.gov/public/attachments/FCC-20-182A1.pdf).

All should be of interest to TCPAWorld followers.

Extension To State Governments – First, despite the dissents of Commissioner’s Rosenworcel and Starks, the Order holds that state governments – but not local governments – in the conduct of official business also are not “persons” for purposes of 227(b)(1). According to the FCC, the fundamental presumption applicable to the federal government – “the word ‘person’ does not include the sovereign . . . [except] upon some affirmative showing of statutory intent to the contrary” – is equally applicable to state governments. There are two limits on the clarification, however. It is “limited to calls made by state government callers in the conduct of official business and does not exempt other types of calls made by state officials, such as those related to campaigns for re-election.”(emphasis supplied) And, the exclusion specifically relates to Section 227(b)(1) of the TCPA. In leaving out local governments, the Order notes that unlike Federal and state entities, they are not “sovereign” and there is no indication Congress intended to exclude them from the definition of “person.”

Government Contractors Are TCPA “Persons” –  Second, the FCC reverses field and holds that Federal and state government contractors are “persons” for Section 227(b)(1) purposes. Local government contractors are now also included. All fit within the definition of that term and there is no “longstanding presumption” or special context that requires otherwise. Further, according to the Order, the 2016 FCC “incorrectly applied our precedent on agency to federal government contractor relationships by grounding its decision on [a ruling]…which did not involve the federal government nor the definition of ‘person’….”  Still, the Order indicates, contractors can always obtain the requisite consent or “may also qualify for forms of derivative immunity when making calls on behalf of the federal government.” The agency leaves to the courts “to determine whether the contractor satisfies the applicable test for derivative immunity, in accordance with generally applicable federal common law principles.” The FCC also alludes, without specifying, to “recognized exemptions to continue to make calls on behalf of the federal government.”

 But Is The Contractor The “Maker” Of The Call? Third, but certainly not the least, the FCC – in four concise paragraphs tucked in the middle of the Order – offers another potential avenue of relief at least for federal government contractors.  In response to comments filed by one platform provider that facilitated “telephone town hall” calls, the FCC notes agreement that “a federal contractor may be able to avoid liability under the TCPA if it is not the ‘maker of the call.’”

Pay attention platform providers!!!!

The Order reiterates the two ways a caller may be found to have made or initiated a call: “first, by ‘tak[ing] the steps necessary to physically place a telephone call’; and second, by being ‘so involved in the placing of a specific telephone call as to be directly liable for making it.’” Next, the Order restates that it would consider “‘the totality of the facts and circumstances surrounding the placing of a particular call” in assessing these which of these two ways might apply.

As for specific factors in making the assessment: “who determines the content of the message, who determines the recipients of the message, who determines the timing of when the message is sent, the extent to which a person willfully enables fraudulent spoofing, and whether a calling platform knowingly allows clients to use the platform for unlawful purposes.”

The Order commits that the FCC “will continue to apply this analysis to assess TCPA liability of parties, including government contractors, on a case-by-case basis….” No limit here to “federal.”

As for specific circumstances here, the agency noted that “government customers, and not… [the platform provider contractor], make all decisions regarding whether to make a call, the timing of the call, the call recipients, and the content of the call.” Additional circumstances included that the “‘government customer takes the steps physically necessary to initiate a telephone town [hall] call,’ while … [the platform provider contractor’s] role is to ‘manage the technical aspects of the service and to ensure that its customers do not use the platform unlawfully.’” Based on all of this it was the government – not its contractor – that was the maker of the call because it “is so involved in placing the call as to be deemed to have initiated it.”

TCPAWorld take heed of this guidance and tailor your conduct accordingly.

Moreover, this is likely not the last we will hear from the FCC on the TCPA before the Biden Administration assumes the reins.


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