It’s that time again!
It’s time to consider whether – and to what extent – the TCPA applies to government entities. This is absolutely my favorite TCPA topic because of everything the ridiculous patchwork, unintuitive, shifting, and unclear components of U.S. telecommunications law, the application of the TCPA to government entities is absolutely the most difficult to understand (read: nonsense.)
The setting for today’s discussion: a letter from the Secretary of Health and Human Services, a fine federal government agency whose mission is to try to keep people healthy. And not in the “wearing a mask” sense, but rather in the “signing up for health insurance” sense.
To help Americans eligible for various programs sign up for the services they might need, the former HHS wants to send robo-texts and calls to people. But they can’t. Because the TCPA may, or may not, or may partially apply to these messages.
What do I mean?
Well, here’s the specific request from HHS. And as we go through them one by one, you’ll see just how tricky it really is.
HHS wants the FCC to confirm:
- State and federal employees who send such automated and pre-recorded text messages and calls to individuals will generally be immune from prosecution under the TCPA;
- State and federal government contractors who transmit such automated and pre-recorded text messages and calls to individuals will generally be immune from prosecution under the TCPA where the government agency authorizes and directs the actions of the entrepreneur and that the agency validly grants this authorisation;
- In cases where a state government agency has delegated the authority to determine eligibility for Medicaid, CHIP, or BHP to local government entities (e.g., city and county agencies), local government employees who issue such text messages and automated, pre-recorded calls to individuals will generally be immune from prosecution under the TCPA, as will its contractors where the local government entity authorizes and directs the actions of the contractor and that the agency validly confers this authorisation; and
- Managed care entities and, if applicable, their parent companies providing coverage to Medicaid, CHIP, or BHP enrollees under contract with a state agency that deliver such automated, pre-recorded text messages and calls to individuals will generally be at the protected from prosecution under the TCPA, as well as their contractors when the managed care entity or its parent company authorizes and directs the actions of the contractor and the entity validly confers this authorization.
Ok, so you have the question? Real bar exam question item here. 1. Does the TCPA apply to state and federal governments?. 2. Does it apply to contractors sending messages for the government? ; 3. Does it apply to local governments sending delegated messages? 4. Does it apply to managed care services supporting government efforts?
Let’s dig. First some background (largely ctaken from my previous article on the subject.):
So first principles: the TCPA applies to the “person[s]but does not define what a “person” is. OK.
The Communications Act of 1934, to which the TCPA was an amendment, however, defines “person”. A person is defined as “an individual, partnership, association, corporation, trust or corporation”. Notably absent from this definition: the government. So maybe the government really isn’t covered by the TCPA.
But what a minute, in 2015, Congress amended the TCPA to clarify that it does not apply to people collecting government-guaranteed debt. This exemption, of course, turned the TCPA into a content-specific expression restriction which, in turn, leads to a Supreme Court decision which almost led to another Supreme Court decision. But more specifically, if Congress amended the TCPA to exclude contractors working for the federal government, that must mean that federal government contractors were covered by the TCPA after all, right?
In 2016—after the TCPA amendment – the FCC got involved and in something called the Broadnet decision, clarified that the federal government is not in fact a “person” subject to the TCPA after all. And he also clarified that contractors working for the government to make calls are not people either.
OK. Perfect. So after Broadnet, people might feel free to make calls on behalf of the government because… not a “person”, right?
About two months after Broadnet, the FCC issued a NPRM implements former 2015 amendment excluding debt collectors from government guaranteed debt. Although these parties have likely already been exempted from the TCPA due to the fact that they are not “persons”, the FCC has taken the opportunity to bring the collectors of government guaranteed debt back in TCPA coverage. In the FCC’s view, at the time, the congressional authority granted to it to implement the government-guaranteed debt relief allowed it to enforce its regulations under the TCPA exemption for non-persons. Thus, while collectors of government-guaranteed debt are not “persons” for purposes of the TCPA, they were for purposes of the proposed FCC rules implementing the TCPA exemption. which was supposed to prevent the application of the TCPA to them in the first place.
Still dizzy? We are just getting started.
With the TCPA amended to exclude calls on government guaranteed debt, the courts then had to consider whether the exemption would apply retroactively (it is not according to the Ninth Circuit) and whether it would apply pending the outcome of the FCC’s NPRM implementing the exemption with new regulations. This has led to a long back-and-forth battle between consumers and government-guaranteed debt collectors — primarily Navient — with district courts splitting all over.
This last issue was, in a way, put to bed after the newly incorporated FCC under Chairman Pai failed to publish the NPRM in the Federal Register, which therefore did not take effect. The courts appear to have since coalesced around the position that even in the absence of FCC implementing regulations mandated by Congress to enact the amendment, the statutory exemption still took effect at the time of passage. So at least we know that companies seeking to collect government-guaranteed debt are not subject to the TCPA.
Except they are.
Famously enough, the Supreme Court struck down the government guaranteed debt exemption from the law in order to save the TCPA in a real disaster for free speech. This again leaves government-backed debt collectors subject to the TCPA, at least from the perspective of the US Supreme Court. (No matter what it’s worth.)
But then, in December 2020 – five months after the Supreme Court ruling – the FCC came back into the fray and issued an order on reconsideration of the old Broadnet decision of 2016. This time, the Commission really seems to have understood. Basically, the federal and state governments themselves are exempt. But not their contractors, unless they are. But the platforms used to send messages are acceptable, unless they are considered the initiator of the call. Unless they are not. Which they will not be if they follow certain rules, subject to exceptions. But local governments are certainly subject to the TCPA. Most likely.
Everything is here. Clear as an onion soup: FCC reconsideration decision.
So in light of… well, everything that’s happened over the last 7 years, people are a little confused about the state of the law. And those people include HHS and their various contractors.
Now, I suspect the FCC will try to help HHS here. But I also expect it to take a bit of time. So let me weigh in. Now keep in mind that what the Tsar says is technically not legally binding. But probably a very good guide – although I’m not giving legal advice here, consider it more of a predictive forecast. (And this is totally the kind of blog I never could have written when I was still in Big Law, by the way :):):))
- Does TCPA apply to state and federal governments? It’s a pretty clear “no” after the initial and reconsidered decisions on the wide network petition.
- Does this apply to contractors sending messages for the government? ; Well, the amended decision on wide network answer quite clearly too. I mean, there’s a section heading called “Federal contractors are subject to [the TCPA]which is about the clearest directive the Commission can give. But…there’s also a ton of talk about sovereign immunity. And my reading is that the FCC had no intention of changing those rules. So essentially federal contracts are not statutorily exempt from the TCPA but they could be exempted by the operation of the IS. (And in the particular case of texting/calling platforms, you are most likely do not responsible as long as you follow some specific procedural steps which I will be happy to discuss with you. Call the (real) Troutman firm)
- Does this apply to local governments sending messages on delegation of authority? Real tweener here. On the one hand, the FCC has been very clear that messages local governments want to send regarding parade routes and garbage collection days will not be exempt from the TCPA: “We clarify that local government entities…are subject to the TCPA.» See 20-182A1 par. 29. Again, pretty clear. But HHS use case is delegated federal authority. I guess the FCC is going to protect the local governments here. But I invite interested stakeholders to give me a buzz to discuss.
- Does it apply to managed care services supporting government efforts? Managed care services should definitely NOT text alone and without consent. Sorry, not sorry. Too far from my point of view and the risk can be quite high. I’m not saying the FCC won’t finally grant protection to these entities – it may very well be. But you’re too visible a target in the meantime.
Of course, the Commission can simply address the underlying issue and conclude that all of these posts qualify for the pre-existing “emergencies” and “non-commercial health care” exemptions and avoid any intermittent relationship between government contractors. and TCPA.
Thus speaks the Tsar.
As always, please don’t hesitate to contact us if you have any questions. And if you want to read the full letter from HHS (86 million affected here), you can find it here: HHS TCPA TO FCC LETTER
Along the same lines, what would people do without me?