On September 29, 2015, the Federal Communications Commission (FCC) released a Public Notice seeking comments on the Broadnet Teleservices, LLC (Broadnet) petition asking the FCC to declare that the Telephone Consumer Protection Act (TCPA) does not apply to calls made by or on behalf of federal, state, and local governments, when such calls are made for official purposes.

Currently, the FCC’s TCPA rules prohibit the use of an automatic telephone dialing system (autodialer) or prerecorded voice to call wireless telephone numbers, absent an emergency or the “prior express consent” of the called party.  Autodialed or prerecorded marketing calls to wireless telephone numbers require “prior express written consent.”

In its petition, Broadnet stated that teleconferencing technology has been used to promote democratic engagement.  However, due to concerns over the TCPA restrictions on calls to wireless numbers, citizens who utilize wireless phones as their sole method of telephone communication may be effectively deprived of these opportunities to engage with the government.  To help provide services to these individuals, Broadnet urged the FCC to declare that the TCPA consent requirements do not apply to communications initiated by or on behalf of government entities, when such communications are for official purposes.

In support of its petition, Broadnet argued that the definition of “person,” as stated in the Communications Act (in which the TCPA is codified), does not include federal, state, and local government entities.  First, Broadnet explained that the plain language of the TCPA does not apply to government entities; the definition of a “person” (an “individual, partnership, association, joint-stock company, trust or corporation”) does not include a government organization.  Second, Broadnet noted that according to Supreme Court precedent, “the term ‘person’ does not include the sovereign, [and] statutes employing the [word] are ordinarily construed to exclude it.”

Broadnet also urged the Commission to declare that the TCPA does not apply to calls by or on behalf of government officials acting in their official capacities.  Such a finding would lead to arbitrary results.  For example, Broadnet noted, “If a mayor is considered a ‘person’ for purposes of the TCPA but the city is not, could a mayor’s deputy or staff use an autodialer to call wireless phones on behalf of the mayor’s office, but not the mayor herself?”

The authors would like to thank Cobun Keegan for his assistance in preparing this article.