On July 5, the Federal Communications Commission released a declaratory ruling that held that the Telephone Consumer Protection Act does not apply to calls made by or on behalf of the federal government in the conduct of official government business. 

The TCPA makes it unlawful for any “person” to place certain calls to wireless telephone numbers without prior express consent or absent an emergency or one of other designated exceptions.  Citing the Supreme Court’s recent decision in Campbell-Ewald v. Gomez, the FCC held that the term “person” does not apply to the federal government or agents acting within the scope of their agency.  As the Supreme Court in Gomez stated, “[t]he United States and its agencies … are not subject to the TCPA’s prohibitions because no statute lifts their immunity.”  The Gomez Court further indicated that a government contractor may be eligible for “derivative immunity” when it acts under authority validly conferred on it by the federal government. 

“If Congress had wanted to ‘lift’ the government immunity, it would have done so by other means – by, for example, defining ‘person’ to include the federal government,” stated the FCC.  The fact that Congress has not defined “person” in such manner, the FCC argues, reinforces its view that the federal government is not included within the scope of TCPA regulation.   

The declaratory ruling only focused on calls placed by the federal government or its agents, and does not address calls placed by state or local governments.