Reacting quickly to a joint request by the U.S. Department of Health and Human Services (HHS) and the Centers for Medicare & Medicaid Services (CMS) (collectively, the Health Agencies) last Thursday, the FCC released a Public Notice on May 3, 2022, inviting comments about how it should clarify “that certain automated calls and text messages or prerecorded voice calls relating to enrollment in state Medicaid and other governmental health coverage programs are permissible under the Telephone Consumer Protection Act (TCPA).” Recognizing the time-sensitive nature of the Health Agencies’ request, the FCC established a short cycle for public comment – comments are due in 14 days on May 17, 2022, and any reply comments are due on May 24, 2022.
The Sixth Circuit recently became the first federal court of appeals to weigh in on whether plaintiffs can bring TCPA claims for conduct occurring between November 2015 and July 2020—the respective dates on which the unconstitutional government debt exception was passed and the Supreme Court’s decision in Barr v. AAPC declared it unconstitutional and severed it from the statute. Some district courts, such as the District of Louisiana in Creasy v. Charter Communications, Inc., 2020 WL 5761117 (E.D. La. Sept. 28, 2020), have concluded plaintiffs cannot—reasoning that the TCPA was void while an unconstitutional provision was part of it. As covered in our prior posts, district courts have come down on both sides of the issue—leading to significant confusion.
Enter the Sixth Circuit’s decision in Lindenbaum v. Realgy, LLC, No. 20-4252, 2021 WL 4097320 (6th Cir. Sept. 9, 2021), which considered the Chief Judge of the Northern District of Ohio’s decision that dismissed a putative class action arising from prerecorded calls.
For nearly five years, the TCPA explicitly excluded from liability calls made to collect government-backed debt. Naturally, government debt collectors relied on this exception and called debtors without fear of TCPA liability. In 2020, the Supreme Court ruled that this exception was unconstitutional and severed it from the statute. Now, a federal district court has ruled that government debt collectors may be liable for calls made prior to the Supreme Court Ruling, despite their reasonable reliance on the exception. In doing so, the court brushed aside due process concerns.
As previously reported, the government debt exception was severed from the statute by the Supreme Court’s decision in Barr v. AAPC. The AAPC decision was highly fractured—with the Court issuing four opinions but none commanding a majority. Since, district courts have been grappling with AAPC means for the statute.
The FCC in 2016 determined that the federal government was not a “person” subject to the TCPA, and that by extension, federal contractors working within the scope of their delegated authority were also not bound by TCPA restrictions. This Broadnet Declaratory Ruling was the subject of at least one prominent dissent. At the time, then-Commissioner Ajit Pai observed: “[I]t is odd to suggest that a contractor’s status as a ‘person’ could switch on or off depending on one’s behavior or relationship with the federal government.” The National Consumer Law Center and Professional Services Council both filed petitions for reconsideration and this issue was again joined on December 14, 2020, when the FCC issued a Reconsideration Order stating that government contractors – but not federal or state governments themselves – “must obtain prior express consent to call consumers” when making calls on behalf of the government.
Acknowledging that “effective communications with the American public” is “a critical component” to efforts to slow the spread of the coronavirus, the Federal Communications Commission (FCC) released on its own motion, a declaratory ruling on March 20, 2020, addressing the applicability of the “emergency purposes” exception to the TCPA’s prohibition against making automated and prerecorded calls without prior express consent. This declaratory ruling is meant to provide “hospitals, health care providers, state and local health officials, and other government officials” peace of mind when sending important COVID-19 information through automated calls or texts.
As readers of the blog are well aware, the TCPA contains an exception to its consent requirements for calls made for “emergency purposes.” 47 U.S.C. §§ 227(b)(1)(A)-(B). The FCC’s rules define “emergency purposes” to mean “calls made necessary in any situation affecting the health and safety of consumers.” 47 C.F.R. § 64.1200(f)(4). The FCC’s declaratory ruling officially acknowledges the undeniable point that the COVID-19 pandemic constitutes an “emergency” under the TCPA. Earlier this month, on March 13, 2020, the White House declared a national emergency in light of the COVID-19 outbreak in the United States. As of March 20, 2020, all fifty states and the District of Columbia had declared states of emergency, which have led to many cities closing schools, workplaces, parks, restaurants, and houses of worship. Public safety organizations and institutions providing healthcare services, in particular, are changing modes of operation and means of handling some public-facing tasks. For example, many health care clinics have broadened their telemedicine programs or have begun conducting new patient intake “virtually” to triage patients with flu-like symptoms. These changes need to be communicated to existing and prospective patients in a timely manner on a large scale.
The 2016 amendments to the TCPA—which created an exemption for calls that are made “solely to collect a debt owed to or guaranteed by the United States”—have inadvertently reshaped the way that TCPA claims are litigated. While early decisions in Indiana, Alabama, and Florida rejected claims under the FCC’s proposed implementing rules because they never became effective, more recent decisions have focused on whether the exemption, and by extension the entire statute, violates the First Amendment. The first of those was the Fourth Circuit’s decision in American Association of Political Consultants v. FCC, which was soon followed by the Ninth Circuit and the Southern District of Florida.
A pair of new cases, one from Alabama and the other from Florida, has doubled down on the conclusion that plaintiffs cannot rely on the Report and Order adopted by the FCC on August 11, 2016 (the “August 2016 Order”) in asserting their TCPA claims, especially when the subject of the calls is debt owed to or guaranteed by the United States government.
A new case out of Indiana, Sanford v. Navient Solutions, LLC, 2018 WL 4699890 (S.D. IN Oct. 01, 2018), underscores the importance of delving into the details of the FCC materials on which plaintiffs rely to support their claims.
In Sanford, relatively straightforward allegations—the defendant’s continued use of autodialed calls after the plaintiff revoked consent—were complicated by the fact that the federal government owned the debt at issue in the calls. The TCPA prohibits “mak[ing] any call (other than a call made for emergency purpose or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice” to “a cellular telephone service . . . unless such call is made solely to collect a debt owed to or guaranteed by the United States.” 47 U.S.C. § 227(b)(1)(A)(iii) (emphasis added). Continue reading
The FCC recently issued a declaratory ruling addressing petitions that had been filed by Broadnet Teleservices LLC (“Broadnet”), National Employment Network Association (“NENA”), and RTI International (“RTI”), each of which sought guidance or clarification on the extent of the TCPA’s governmental exception when a contractor is placing calls or texts pursuant to its work on behalf of the government. Each of the petitioners provide, or have members that provide, calling services on behalf of federal government entities; Broadnet offers teletown hall calling services for state and local governments as well and RTI performs social science survey work for entities such as the Centers for Disease Control and Prevention (CDC). NENA represents providers of employment services to beneficiaries of Social Security Disability Insurance and Supplemental Security Income. These providers are required to contact program-eligible beneficiaries to provide information about potential programs and services.