At the outset of one of his most well-known novels, For Whom the Bell Tolls, Earnest Hemingway quoted part of a meditation from Seventeenth Century poet John Donne (from which the book is titled):
No man is an Iland, intire of it selfe; every man is a peece of the Continent, a part of the maine; if a Clod bee washed away by the Sea, Europe is the lesse, as well as if a Promontorie were, as well as if a Mannor of thy friends or of thine owne were; any mans death diminishes me, because I am involved in Mankinde; And therefore never send to know for whom the bell tolls; It tolls for thee. (Emphasis added.)
Based on a recent Federal Communications Commission (FCC) decision, however, it appears that the Commission believes that the federal government, in fact, is an island entire of itself. Despite tightening regulations over the years to limit the ability of companies to make robocalls, the FCC, on July 5, 2016, issued a ruling that exempted robocalls from the federal government from Telephone Consumer Protection Act (TCPA) coverage. The FCC thinks it knows what kind of calls you like, and wants to make sure you get them.
To say the least, the FCC’s decision is odd. The Congress’s intent in enacting the TCPA “was to protect consumers from the nuisance, invasion of privacy, cost and inconvenience that autodialed and prerecorded calls generate.” In 1991, the Congress found that “consumers consider these kinds of calls, regardless of the content or the initiator of the message, to be a nuisance and an invasion of privacy.”
The ruling held that the federal government falls outside the TCPA’s definition of a “person.” This means that anyone in the federal government can use an autodialer to call you. It also means that contractors of the federal government can do the same. So, if you owe a debt to the federal government, the TCPA does not prevent a government contractor debt collector from using an autodialer to call you at any time. Furthermore, a contractor for a Member of Congress can call your cellphone to participate in town halls or to seek campaign contributions. It is unclear, however, how governmental calls ring differently on a consumer’s telephone or why such autodialed or prerecorded message calls are not “nuisances” when placed by a government contractor rather than a private business. And the FCC has offered no explanation.
This ruling follows on the heels of a bill passed near the end of last year, which exempted government debt collection calls from the TCPA. That bill directed the FCC to draft rules regarding government robocalls. The current ruling is the result.
The impact of this new ruling may serve to curb certain types of TCPA lawsuits against those placing calls on behalf of the federal government. We continue to track TCPA litigation across the country and a list of recent cases can be found here.