The FCC has decided that legislators robocalling constituents, so long as it is not for campaigning for reelection, are not subject to the TCPA (Telephone Consumer Protection Act) consumer protection laws requiring prior consent.
That came in a declaratory ruling released this week. Various parties had sought that clarification, including three members of Congress.
The FCC concluded that the term "person" in the consent requirement "does not include the federal government or agents acting within the scope of their agency under common-law principles of agency." The FCC concluded that allowing government robocalling will "foster public safety and save resources by allowing government to use the most cost-efficient method of communicating with the public."
That means that government agencies and their contractors can conduct research, and legislators can inform constituents about, say, an upcoming town hall, without having to get prior consent.
"[W]e clarify that the TCPA does not apply to calls made by or on behalf of the federal government in the conduct of official government business, except when a call made by a contractor does not comply with the government’s instructions. The TCPA continues to apply to non-governmental activities including...to political campaign events conducted by federal officeholders," the FCC said.
Eric Troutman, partner in law firm Dorsey & Whitney, a veteran TCPA defense attorney, saw it as a First Amendment victory. "The FCC recognizes the TCPA’s impact on free speech after all," he said.
"[T]he Commission notes that 'subjecting the federal government to the TCPA’s prohibitions would significantly constrain the government’s ability to communicate with its citizens.' This is significant because the FCC has previously, and somewhat disingenuously, suggested that the TCPA but does not unnecessarily 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...' While this is undoubtedly so, the FCC appears to forget that the First Amendment protects the rights of citizens to free speech, not just the rights of governments," he said.
The FCC was interpreting TCPA using guidance from the Supreme Court in Campbell-Ewald Co. v. Gomez, where the High Court found that government agencies are immune from the TCPA robocall prohibitions and contractors may be eligible for derivative immunity when they are acting under the authority of the federal government.
“The Commission is committed to protecting consumers against unwanted calls to the extent permitted under the law," an FCC spokesperson said. "This ruling clarifies that the Commission interprets the law as excluding calls by the Federal Government or its agents from the TCPA. This is consistent with the interpretation clearly articulated by the Supreme Court in its recent ruling.”
