Government and Government Contractor Calls Under the Telephone Consumer Protection Act of 1991, 9299-9301 [2020-29016]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 86, Number 28 (Friday, February 12, 2021)]
[Rules and Regulations]
[Pages 9299-9301]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-29016]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Chapter I

[CG Docket No. 02-278; FCC 20-182; FRS 17356]


Government and Government Contractor Calls Under the Telephone 
Consumer Protection Act of 1991

AGENCY: Federal Communications Commission.

ACTION: Adjudicatory ruling.

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SUMMARY: In this document, the Commission finds that state government 
callers, like federal government callers, are not ``persons'' for 
purposes of the Telephone Consumer Protection Act (TCPA) because they 
are sovereign entities. The Commission also clarifies that a local 
government caller is a ``person'' subject to the TCPA. On 
reconsideration of the Broadnet Declaratory Ruling, the Commission 
reverses its previous order to the extent that it provided that a 
contractor making calls on behalf of the federal government was not a 
``person'' subject to the restrictions of the TCPA. The Commission also 
clarifies that a state or local government contractor, like a federal 
government contractor, is a ``person'' and thus not exempt from the 
TCPA's restrictions. This action was taken in response to petitions 
that sought clarification of these issues and removes any uncertainty 
on when governmental callers or contractors making calls on their 
behalf are required to obtain the prior express consent of called 
parties.

DATES: Effective February 12, 2021.

FOR FURTHER INFORMATION CONTACT: Richard D. Smith of the Consumer and 
Governmental Affairs Bureau at (717) 338-2797 or [email protected]; 
or Kristi Thornton at (202) 418-2467 or [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order 
on Reconsideration, document FCC 20-182, released on December 14, 2020. 
The full text of document FCC 20-182 is available online at https://docs.fcc.gov/public/attachments/FCC-20-182A1.pdf. To request this 
document in accessible formats for people with disabilities (e.g., 
Braille, large print, electronic files, audio format) or to request 
reasonable accommodations (e.g., accessible format documents, sign 
language interpreters, CART), send an email to [email protected] or call 
the FCC's Consumer and Governmental Affairs Bureau at (202) 418-0530 
(voice).

Synopsis

    1. On reconsideration of the Broadnet Declaratory Ruling, the 
Commission reverses its previous order to the extent that it provided 
that a contractor making calls on behalf of the federal government was 
not a ``person'' subject to the restrictions in section 227(b)(1) of 
the TCPA. The Commission also clarifies 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 from the TCPA's restrictions. Finally, the 
Commission clarifies that a local government is a ``person'' subject to 
the TCPA. As such, the Commission grants in part the National Consumer 
Law Center (NCLC) petition for reconsideration, denies the Professional 
Services Council (PSC) petition for reconsideration, reverses the 
Commission's Broadnet Declaratory Ruling in part, and grants in part 
and denies in part Broadnet's petition for declaratory ruling.

A. Federal Contractors are Subject to Section 227(b)(1) of the TCPA

    2. The Commission finds that a federal government contractor is a 
``person'' under section 227(b)(1). The term ``person'' as used in the 
TCPA and defined in the Communications Act (Act) expressly includes an 
``individual, partnership, association, joint-stock company, trust, or 
corporation'' ``unless the context otherwise requires.'' Every federal 
contractor, including those acting as agents, falls within one of these 
categories. And, unlike the federal government itself, there is no 
longstanding presumption that a federal contractor is not a ``person.'' 
Nor does the Commission find any ``context that otherwise requires'' it 
to ignore the express language of the Act's definition of the term 
``person'' in this situation. Absent any applicable presumption to the 
contrary, the express definition of ``person'' as contained in the Act 
is controlling.
    3. Federal government contractors may obtain consumers' prior 
express consent to make calls covered by the

[[Page 9300]]

TCPA. Such contractors may also qualify for forms of derivative 
immunity when making calls on behalf of the federal government--the 
Commission does not alter or impair the ability of contractors to 
invoke derivative immunity from liability when making calls on behalf 
of the federal government.
    4. In this document, the Commission finds that it incorrectly 
applied precedent on agency to federal government-contractor 
relationships in the Broadnet Declaratory Ruling. Specifically, the 
Commission grounded its decision in the DISH Declaratory Ruling, which 
pertained to a non-governmental ``person'' subject to the TCPA and 
whether it is vicariously liable for the actions of its non-
governmental agents. As a result, the Commission finds that precedent 
does not bear on the issues here--which callers are TCPA ``persons''--
but instead involved principals and agents that were undoubtedly 
``persons.''
    5. Maker of the Call. In this document, the Commission finds that a 
federal contractor may be able to avoid liability under the TCPA if it 
is not the ``maker of the call.'' The Commission previously clarified 
that a caller may be found to have made or initiated a call in one of 
two ways: 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.'' 
The Commission stated that, in determining the maker of the call, it 
would consider ``the totality of the facts and circumstances 
surrounding the placing of a particular call to determine: (1) Who took 
the steps necessary to physically place the call; and (2) 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.''
    6. In this document, the Commission states that it will continue to 
apply this analysis to assess TCPA liability of parties, including 
government contractors, on a case-by-case basis. Based on these fact-
specific criteria, Broadnet states that its ``government customers, and 
not Broadnet, make all decisions regarding whether to make a call, the 
timing of the call, the call recipients, and the content of the call.'' 
It further states that its ``government customer takes the steps 
physically necessary to initiate a telephone town [hall] call,'' while 
Broadnet's role is to ``manage the technical aspects of the service and 
to ensure that its customers do not use the platform unlawfully.''
    7. The Commission finds that Broadnet is not the maker of the call, 
but rather that Broadnet's government client is the maker of the call 
because that government client is so involved in placing the call as to 
be deemed to have initiated it.

B. State Governments and State Government Contractors

    8. The Commission clarifies that state government callers in the 
conduct of official business likewise do not fall within the meaning of 
``person'' in section 227(b)(1), while state contractors, like their 
federal counterparts, are ``person[s]'' under that provision. As the 
Commission has noted, there is a ``longstanding interpretive 
presumption'' that the word `person' does not include the sovereign . . 
. [except] upon some affirmative showing of statutory intent to the 
contrary.'' The Supreme Court has confirmed that this presumption is 
applicable to state governments. Moreover, neither the TCPA nor the 
Communications Act defines ``person'' to include state governmental 
entities.
    9. This clarification 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. Nevertheless, the Commission encourages 
state governments to make efforts to honor consumer requests to opt out 
of such exempted calls to minimize any consumer privacy implications.
    10. The Commission states that it is limiting its interpretation of 
``person'' as excluding state governments to the specific statutory 
provision before it: Section 227(b)(1) of the TCPA. As in the Broadnet 
Declaratory Ruling, the Commission makes no finding with respect to the 
meaning of ``person'' as used elsewhere in the Act.
    11. For the same reasons the Commission found federal contractors 
are ``persons'' under section 227(b)(1) of the TCPA, the Commission now 
finds that contractors acting on behalf of state governments are 
likewise ``persons.'' Such contractors fall within the express language 
of the Communications Act's definition of ``person'' and it finds no 
compelling argument to the contrary. As with federal contractors, this 
ruling leaves it to the courts to apply the body of existing immunity 
law to state contractors and to make determinations of derivative 
immunity on a case-by-case basis.

C. Local Governments and Local Government Contractors

    12. The Commission clarifies that local government entities, 
including counties, cities, and towns, are ``persons'' within the 
meaning of section 227(b)(1) and are, therefore, subject to the TCPA. 
Specifically, the Commission finds that the definition of ``person'' 
encompasses local governments because they are not sovereign entities 
and have generally been treated as persons subject to suit. In 
addition, the Commission finds that, even if the definition of 
``person'' is ambiguous as applied to local governments, the underlying 
policy goals and legislative history of the TCPA support a finding that 
TCPA restrictions apply to local government entities.
    13. The law has long recognized that a municipal corporation is a 
local political entity, such as a city or town, formed by charter from 
the state. Municipal corporations, like private corporations, have been 
``treated alike in terms of their legal status as persons capable of 
suing and being sued.'' ``The archetypal American corporation of the 
eighteenth century [was] the municipality,'' and local governments 
generally are incorporated under state law and operate pursuant to a 
charter outlining their incorporation. The Commission further notes 
that all states have adopted some form of municipal corporate structure 
and that the federal government often treats incorporated and non-
incorporated areas similarly.
    14. The Commission finds that the lack of any clear indication that 
Congress intended to exclude local governments from the TCPA is 
evidence that Congress intended such government entities to fall under 
its purview.
    15. The Commission further finds that the underlying goals and 
legislative history of the TCPA separately show that Congress intended 
local governments to be subject to the law's restrictions. Congress' 
intent to prohibit nuisance calls to consumers is instructive in the 
Commission's interpretation of any ambiguity within the statute. 
Because of Congress' clear intent to protect consumers, the Commission 
interprets any ambiguity to the benefit of the consumer.
    16. The Commission also clarifies that a local government 
contractor is a ``person,'' as that term is used in section 227(b)(1) 
of the TCPA. Because local governments and their contractors are 
``persons,'' they are subject to section 227(b)(1) of the TCPA and must 
abide by the requirements contained therein, including obtaining prior 
express consent when making autodialed or artificial or prerecorded 
voice calls to certain types of telephone numbers such as wireless 
numbers.
    17. As with other ``persons'' subject to the TCPA, local 
governments and their

[[Page 9301]]

contractors may avail themselves of the TCPA's exemptions to the prior 
express consent requirement, such as calls made for ``emergency 
purposes.'' Nothing in the Commission's decision impedes the ability of 
local governments or contractors to make emergency calls to wireless 
telephone numbers when such calls are necessary to protect the health 
and safety of citizens. The Commission has recently confirmed, for 
example, that government officials and public health care authorities, 
as well as a person under the express direction of such organizations 
and acting on its behalf, can make automated calls directly related to 
the imminent health or safety risks arising out of the COVID-19 
pandemic without the prior express consent of the called party.

Federal Communications Commission.
Marlene Dortch,
Secretary, Office of the Secretary.

    Editorial Note:  The Office of the Federal Register received 
this document on December 28, 2020.
[FR Doc. 2020-29016 Filed 2-11-21; 8:45 am]
BILLING CODE 6712-01-P