Do as We Say, Not as We Do: Government Agency (Deliciously) Exempts Itself—and the Rest of the Government—From the TCPA

FCC and TCPAHappy Independence Day!

While you were off barbecuing and lighting fireworks this weekend the FCC’s staff was feverishly working to give Uncle Sam a birthday present—free reign to robocall your cell phone! That’s right, effective immediately the TCPA no longer applies to the federal government or any of its agencies or contractors. That means the government—and only the government—can robocall your cell phone all it would like and without your consent. As the FCC explains matters, we can expect the government to use its new powers for “benevolent” messaging (see par 19) and never to annoy or harass you. The ruling is attached here.

Unfortunately the FCC does not trust individual citizens to exercise the same restraint to be expected from the federal government—which the FCC is a part of, in case you missed that—and so most dialer technologies used by industry remain subject to the FCC’s tight, shifting and often times inconsistent (if not incoherent) regulations. Violations of these rules may result in a civil penalty of up to $1,500.00 per call. (That’s a lot of coin on a government salary.)

Beyond the “the rules do not apply to us” shtick, the FCC’s rationale is actually very telling. First, the FCC finally recognizes the impact the TCPA has on free speech. Specifically, the  Commission notes that “subjecting the federal government to the TCPA’s prohibitions would significantly constrain the government’s ability to communicate with its citizens.”  Par. 15. This is significant because—as our readers know—the FCC has previously, and somewhat disingenuously, suggested that the TCPA 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.

Speaking of the First Amendment, the FCC seems to be tempting fate—and the DC Circuit—by expressly regulating speech based upon content. Specifically, the FCC justifies its ruling carving out the government from TCPA coverage, in part, by pointing out that the substance of speech to be expected from the government is “benevolent” (see par. 19). Yikes. Obviously the First Amendment does not tolerate this sort of “good speech/bad speech” approach to regulation and rulings such as these might—finally—lead to the TCPA’s ultimate undoing.

The most rewarding line in the entire ruling, however, is surely the FCC’s long overdue admission that “federal agencies are not often experienced at operating call centers.” Par. 19. To which industry might gently respond: “We’ve read your rulings. We can tell.”

All joking aside, the FCC’s ruling is undoubtedly the correct one and should afford some much needed protection and clarity to agencies that place calls on behalf of the federal government. It remains to be seen what effect this ruling will have on the Commission’s still-pending NPRM interpreting and applying the Balance Budget Act amendments to the TCPA, which carves out calls placed to collect on government-backed debt.

Dorsey & Whitney

Dorsey & Whitney

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