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Federal Register / Vol. 86, No. 28 / Friday, February 12, 2021 / Rules and Regulations
TCPA. Such contractors may also qualify for forms of derivative immunity when making calls on behalf of the federal governmentthe Commission does not alter or impair the ability of contractors to invoke derivative immunity from liability when making calls on behalf of the federal government.
4. In this document, the Commission finds that it incorrectly applied precedent on agency to federal government-contractor relationships in the Broadnet Declaratory Ruling.
Specifically, the Commission grounded its decision in the DISH Declaratory Ruling, which pertained to a nongovernmental person subject to the TCPA and whether it is vicariously liable for the actions of its nongovernmental agents. As a result, the Commission finds that precedent does not bear on the issues herewhich callers are TCPA personsbut instead involved principals and agents that were undoubtedly persons.
5. Maker of the Call. In this document, the Commission finds that a federal contractor may be able to avoid liability under the TCPA if it is not the maker of the call. The Commission previously clarified that a caller may be found to have made or initiated a call in one of two ways: First, by taking the steps necessary to physically place a telephone call; and second, by being so involved in the placing of a specific telephone call as to be directly liable for making it. The Commission stated that, in determining the maker of the call, it would consider the totality of the facts and circumstances surrounding the placing of a particular call to determine:
1 Who took the steps necessary to physically place the call; and 2
whether another person or entity was so involved in placing the call as to be deemed to have initiated it, considering the goals and purposes of the TCPA.
6. In this document, the Commission states that it will continue to apply this analysis to assess TCPA liability of parties, including government contractors, on a case-by-case basis.
Based on these fact-specific criteria, Broadnet states that its government customers, and not Broadnet, make all decisions regarding whether to make a call, the timing of the call, the call recipients, and the content of the call.
It further states that its government customer takes the steps physically necessary to initiate a telephone town hall call, while Broadnets role is to manage the technical aspects of the service and to ensure that its customers do not use the platform unlawfully.
7. The Commission finds that Broadnet is not the maker of the call,
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but rather that Broadnets government client is the maker of the call because that government client is so involved in placing the call as to be deemed to have initiated it.
B. State Governments and State Government Contractors 8. The Commission clarifies that state government callers in the conduct of official business likewise do not fall within the meaning of person in section 227b1, while state contractors, like their federal counterparts, are persons under that provision. As the Commission has noted, there is a longstanding interpretive presumption that the word person does not include the sovereign . . . except upon some affirmative showing of statutory intent to the contrary. The Supreme Court has confirmed that this presumption is applicable to state governments.
Moreover, neither the TCPA nor the Communications Act defines person to include state governmental entities.
9. This clarification is limited to calls made by state government callers in the conduct of official business and does not exempt other types of calls made by state officials, such as those related to campaigns for re-election. Nevertheless, the Commission encourages state governments to make efforts to honor consumer requests to opt out of such exempted calls to minimize any consumer privacy implications.
10. The Commission states that it is limiting its interpretation of person as excluding state governments to the specific statutory provision before it:
Section 227b1 of the TCPA. As in the Broadnet Declaratory Ruling, the Commission makes no finding with respect to the meaning of person as used elsewhere in the Act.
11. For the same reasons the Commission found federal contractors are persons under section 227b1 of the TCPA, the Commission now finds that contractors acting on behalf of state governments are likewise persons.
Such contractors fall within the express language of the Communications Acts definition of person and it finds no compelling argument to the contrary. As with federal contractors, this ruling leaves it to the courts to apply the body of existing immunity law to state contractors and to make determinations of derivative immunity on a case-bycase basis.
C. Local Governments and Local Government Contractors 12. The Commission clarifies that local government entities, including counties, cities, and towns, are
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persons within the meaning of section 227b1 and are, therefore, subject to the TCPA. Specifically, the Commission finds that the definition of person encompasses local governments because they are not sovereign entities and have generally been treated as persons subject to suit. In addition, the Commission finds that, even if the definition of person is ambiguous as applied to local governments, the underlying policy goals and legislative history of the TCPA support a finding that TCPA
restrictions apply to local government entities.
13. The law has long recognized that a municipal corporation is a local political entity, such as a city or town, formed by charter from the state.
Municipal corporations, like private corporations, have been treated alike in terms of their legal status as persons capable of suing and being sued. The archetypal American corporation of the eighteenth century was the municipality, and local governments generally are incorporated under state law and operate pursuant to a charter outlining their incorporation. The Commission further notes that all states have adopted some form of municipal corporate structure and that the federal government often treats incorporated and non-incorporated areas similarly.
14. The Commission finds that the lack of any clear indication that Congress intended to exclude local governments from the TCPA is evidence that Congress intended such government entities to fall under its purview.
15. The Commission further finds that the underlying goals and legislative history of the TCPA separately show that Congress intended local governments to be subject to the laws restrictions. Congress intent to prohibit nuisance calls to consumers is instructive in the Commissions interpretation of any ambiguity within the statute. Because of Congress clear intent to protect consumers, the Commission interprets any ambiguity to the benefit of the consumer.
16. The Commission also clarifies that a local government contractor is a person, as that term is used in section 227b1 of the TCPA. Because local governments and their contractors are persons, they are subject to section 227b1 of the TCPA and must abide by the requirements contained therein, including obtaining prior express consent when making autodialed or artificial or prerecorded voice calls to certain types of telephone numbers such as wireless numbers.
17. As with other persons subject to the TCPA, local governments and their
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