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Focus on Regulation

Supreme Court Decision in Gomez Shifts Attention Back to FCC TCPA Petitions

In January, the United States Supreme Court issued a long-awaited ruling in Campbell-Ewald Co. v. Gomez, 577 U.S. __ (2016), a significant case for companies defending against consumer and other class actions, including those based on the Telephone Consumer Protection Act (TCPA) – as well as for contractors working on behalf of the federal government.

The decision had two key holdings.  First, an unaccepted settlement offer or offer of judgment for complete relief made to the named plaintiff in a putative class action does not moot the plaintiff’s case or the class action.  Second, government contractors are not entitled to derivative sovereign immunity where they have failed to abide by the government’s express instructions and violated federal law.

In light of this decision, we expect attention to turn back to the Federal Communications Commission (FCC) to resolve some remaining TCPA contractor liability issues.  Three petitions are pending before the FCC on related issues:

  • In the first petition, the National Employment Network Association (“NENA”) asks the FCC to confirm that a long-standing relationship with a federal agency can imply “prior express consent” to receive calls from or on behalf of that agency under the TCPA.
  • In a second petition, Broadnet Teleservices LLC (“Broadnet”) asks the FCC to clarify that the TCPA does not apply to calls “made by or on behalf of federal, state, and local governments when such calls are made for official purposes.” See our prior post for more details.
  • Finally, a petition from RTI International (“RTI”) asks the FCC to confirm that the TCPA does not restrict research survey calls made by or on behalf of the federal government.

The FCC has already sought public comment on these petitions and could issue a decision at any time.

Additionally, the FCC is expected to initiate a rulemaking soon on new exemptions from the TCPA’s consent requirements.  The 2015 Budget Act amended the TCPA to exempt from these consent restrictions calls “to collect a debt owed to or guaranteed by the United States.”  The 2015 Budget Act also instructed the FCC to coordinate with the Department of the Treasury to adopt rules that implement the new exemptions within nine months.

How Can We Help?

Our TCPA Working Group brings together more than 25 attorneys in our litigation, communications, commercial, and privacy practice areas.  We provide regular TCPA counseling to clients from a broad range of industries, including technology, healthcare, communications, transportation, and financial services.  We have secured dismissals and nominal settlements for clients in TCPA actions and have worked with the FCC to clarify rules addressing a number of key TCPA issues.