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FCC Rules TCPA Does Not Apply to Official Calls Made by Feds or Federal Contractors

The Federal Communications Commission (FCC) recently clarified “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.”

A copy of the FCC’s Declaratory Ruling 16-72 is available at:  Link to Declaratory Ruling.

As you may recall from our prior update, Congress amended the Telephone Consumer Protection Act (TCPA) in the Bipartisan Budget Act of 2015 to allow autodialed calls “made solely to collect a debt owed to or guaranteed by the United States” without the prior express consent of the called party.  The FCC issued a Notice of Proposed Rulemaking seeking comment on various issues relating to the amendment, and those proceedings are still ongoing.

The FCC states that this Declaratory Ruling 16-72 “does not mean that Congress’s recent decision to except calls ‘made solely to collect a debt owed to or guaranteed by the United States’ from the prior express consent requirement was unnecessary.”

Instead, the FCC in this Declaratory Ruling 16-72 focuses on the meaning of the term “person” in the TCPA.

As you may recall, the TCPA among other things makes it unlawful for “any person within the United States, or any person outside the United States if the recipient is within the United States,” to place autodialed or prerecorded- or artificial-voice calls to wireless telephone numbers, except with the prior express consent of the called party or in an emergency, or unless the call is solely to collect a debt owed to or guaranteed by the United States.  See 47 U.S.C. § 227(b)(1).

Stated differently, the TCPA in relevant part makes it unlawful for any “person” within the United States, or any “person” outside the United States if the recipient is within the United States, to place certain calls to landline and wireless telephone numbers, absent prior express consent, an emergency, or other exceptions.

The FCC notes that the TCPA is codified within the federal Communications Act, “which defines ‘person’ to ‘include[] an individual, partnership, association, joint-stock company, trust, or corporation.’”

Interpreting the statutory language and other authority, the FCC ruled in this Declaratory Ruling 16-72 that “the term ‘person,’ as used in section 227(b)(1) and our rules implementing that provision, does not include the federal government or agents acting within the scope of their agency under common-law principles of agency.”

The FCC clarified that the TCPA does not apply to “a contractor when acting on behalf of the federal government, as long as the contractor is acting as the government’s agent in accord with the federal common law of agency.”

More specifically, the FCC stated that “a government contractor who places calls on behalf of the federal government will be able to invoke the federal government’s exception 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.”

The FCC emphasized that “a call placed by a third-party agent will be immune from TCPA liability only where (i) the call was placed pursuant to authority that was ‘validly conferred’ by the federal government, and (ii) the third party complied with the government’s instructions and otherwise acted within the scope of his or her agency, in accord with federal common-law principles of agency.”

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Ralph Wutscher's practice focuses primarily on representing consumer and commercial financial services companies, including depository and non-depository mortgage lenders and servicers, as well as mortgage loan investors, financial asset buyers and sellers, loss mitigation companies, third-party debt collectors, and other financial services providers. He represents the lending and financial services industry as a litigator, and as regulatory compliance counsel. For more information, see https://mauricewutscher.com/attorneys/ralph-t-wutscher/

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