Earlier this month, the FCC released a controversial ruling, concluding that the law allowed the federal government — and all contractors working for the government — to place prerecorded/auto-dialed robocalls to consumers, so long as the calls are made for official government business. Today, a number of consumer advocates have officially petitioned the FCC to rethink its position and close this loophole.
For those coming late to this particular robocall party, here’s a quick catch-up. Three private companies — each of which also does contract work on behalf of the government — recently asked the FCC to clarify some of the legal gray areas in the Telephone Consumer Protection Act.
The TCPA prohibits “any person” in the United States from placing robocalls “to any telephone number assigned to a… cellular telephone service… or any service for which the called party is charged for the call.” But does “person” mean an individual human, or a company, or the government? If the government is different from a “person,” what about companies that do work for the government?
The FCC looked at the recent U.S. Supreme Court decision in Campbell-Ewald Co. v. Gomez [PDF], a case involving a telemarketing contractor for the U.S. Navy. The Supremes explained in the ruling that the U.S. government is “not subject to the TCPA’s prohibitions because no statute lifts their immunity,” and clarified that government contractors could enjoy derivative immunity from the TCPA if they are following the exact orders of the agency that contracted the company.
So basically, as the FCC applied the ruling [PDF], if Federal Agency A hires Company X to make robocalls, those calls are protected so long as Company X doesn’t stray from its instructions. Additionally, the robocalls must relate to government-related activities.
However, this morning, the National Consumer Law Center filed a petition — on behalf of its low-income clients, and dozens of other advocacy groups, including our colleagues at Consumers Union — filed a petition [PDF], arguing that the TCPA “unquestionably applies to contractors of the federal government, regardless of their agency status.”
The groups argue that, thanks to this loophole, “tens of millions of Americans will find their cell phones flooded with unwanted robocalls from federal contractors with no means of stopping these calls and no remedies to enforce their requests to stop these calls.”
The petition contends that the FCC is misreading the SCOTUS ruling in Campbell-Ewald. Rather than extending the government’s blanket TCPA immunity to private contractors, it only stated that a telemarketer could not enjoy that immunity because it didn’t follow the instructions it received from the government office that hired it to make the calls.
“Nothing in the Supreme Court’s decision provides support for the proposition that federal contractors, even when acting as agents for the government, are not ‘person[s]’ under the TCPA and are thus wholly exempt from its mandates,” explains the petition.
It points to the very language of the TCPA, which defines a person as including an “individual, partnership, association, joint-stock company, trust, or corporation.”
The fact that a corporation gets paid to do work for the government doesn’t make it any less of a corporation, argue the petitioners.
Last fall, Congress tacked on a last-minute piece of pork to a must-pass federal budget bill, opening up a new loophole granting the government and its contractors the authority to make debt-collection robocalls.
The petition points to this legislative maneuvering as evidence that Congress does not believe that government contractors are exempt from the TCPA when doing government work. If the law already gives this protection to third-party contractors, there would have been no need for new legislation.
Furthermore, argues the petition, the FCC ruling potentially opens up the door to abuses, like the use of random-number dialers, resulting in calls to “emergency rooms, police and fire departments, poison control centers, and the like.”
“People could be hit with robocalls to their cell phones asking their views on the many surveys conducted every year, [or] calls setting up ‘citizen town halls,'” explains NCLC attorney Margot Saunders.
“Robocalls have exploded in recent years and top the list of consumer complaints to the FCC,” adds Maureen Mahoney, policy analyst for Consumers Union. “The FCC shouldn’t make the robocall epidemic even worse by exempting government contractors from the rules that protect consumers from unwanted calls.”
by Chris Morran via Consumerist
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