The FCC has decided that the federal government is exempt from consumer protection laws that limit unwanted robocalls. The Telephone Consumer Protection Act (TCPA) bars businesses from making numerous autodialed or prerecorded calls to a person’s cellphone — and similar telemarketing calls to a person’s home phone, but the FCC determined last night that those laws still will not apply to the federal government. Contractors working on the government’s behalf are also exempt.
Eric Troutman is a partner at the international law firm Dorsey & Whitney and is one of the country’s prominent Telephone Consumer Protection Act (TCPA) defense attorneys, having served as lead defense counsel on over 30 nationwide TCPA class actions and having handled hundreds of individual TCPA cases. He also “wrote the book” on TCPA defense, having co-authored the nation’s first comprehensive practice guide on the subject. In addition, he has helped spearhead the banking industry’s push for TCPA clarity before the Federal Communications Commission and has assisted on numerous appeals addressing hot-button TCPA issues. He’s been following this and of it says,
“The FCC recognizes the TCPA’s impact on free speech after all. In supporting its ruling exempting the federal government from the TCPA’s coverage 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 the FCC has previously, and somewhat disingenuously, suggested that the TCPA but does not unnecessarily burden or chill free speech.
Yet the Commission now states:
“[if] 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,” Troutman says.
“The FCC also expressly admits that it is carving out the government, in part, due to its impression that the substance of the speech to be expected from the government is “benevolent” (see par. 19). But such content-based exemptions to an otherwise content-neutral statute may prove the TCPA’s ultimate undoing. The First Amendment does not tolerate content-based restrictions on speech and the FCC’s recent TCPA rulings are becoming dangerously close to outright regulation of what speech is, and is not, to be permitted in the United States,” Troutman says.