Should the Telephone Consumer Protection Act apply to government entities and their agents?

The Federal Communications Commission has requested comment on whether federal, state, and local governments—and agents making calls on their behalf for official purposes—should be exempt from liability under the statute.

Broadnet Teleservices LLC, a telecommunications company, filed a petition with the FCC in September, seeking an order that the statute does not apply to government entities. The company offers a technology platform that enables federal, state, or local lawmakers to contact citizens by phone and ask them to participate in a real-time event. The TeleForum service has been used by members of Congress to help constituents prepare for hurricane season, for example, and has enabled state education commissioners to discuss school financing issues with parents.

Broadnet argued that such services are particularly important for millennials and individuals living in poverty who rely on wireless phones as their primary, or only, means of communication. “These individuals deserve the same access to democracy and the same engagement with policymakers that is currently only possible for individuals with access to landline phones,” the company said.

The statute’s plain language supports such an exemption, the company contended. The TCPA defines a “person” as an “individual, partnership, association, joint-stock company, trust or corporation,” leaving federal, state, and local government entities outside the definition. Multiple courts, including the First and Ninth Circuit Courts of Appeals, have reached a similar conclusion, and the U.S. Supreme Court has stated that “in common usage, the term ‘person’ does not include the sovereign, [and] statutes employing the [term] are ordinarily construed to exclude it.”

As the TCPA does not apply to the government, it also necessarily cannot apply to government officials acting in their official capacities, the petition added, as “[a]ny such arbitrary line-drawing and distinctions cannot be what Congress intended.”

Broadnet then took its argument one step further to reach service providers working on behalf of government entities and officials.

“Government agencies do not have the specialists on staff and technology necessary to make telephone town hall calls without assistance,” the company wrote. “As a practical matter, any uncertainty with respect to the TCPA’s application to those that act on behalf of government entities and officials making telephone town hall and other constituent calls to wireless numbers would effectively prohibit the making of such calls. Thus, in addition to confirming that the TCPA does not apply to government-to-citizen calls, the Commission also should confirm that service providers acting on behalf of government entities and officials are not subject to the TCPA.”

In response, the FCC issued a public notice asking for comment on the issues raised in the petition, with the comment period ending on October 29.

To read Broadnet’s petition to the FCC, click here.

To read the FCC’s request for comment, click here.

Why it matters: In a matter of first impression for the FCC, the agency must decide whether government entities are exempt from the TCPA when it weighs consumers’ privacy rights against the need for these entities and their agents to transmit important information to the public.