As we head towards 2020, it’s time once again for the decennial U.S. national Census – one of the broadest data collections that the United States federal government undertakes to learn more about its citizens, recalibrate Congressional districts, allocate public funding, and deliver critical public services. But the government’s ability to conduct the upcoming Census is under threat from an unlikely source – the Federal Communications Commission’s (FCC’s) interpretation of the Telephone Consumer Protection Act (TCPA).
Article I, Section 2 of the Constitution requires an accounting of the people of the United States once every ten years. The U.S. Census Bureau, a bureau within the Department of Commerce, is responsible for conducting the Census.
Yesterday, Commerce Secretary Wilbur Ross filed a letter with the FCC urging the agency not to diverge from Supreme Court precedent by expanding the scope of entities subject to the TCPA. By way of background, the FCC previously held that federal agencies, as well as contractors acting on behalf of federal agencies, are not “persons” subject to the TCPA. Some have asked the FCC to reconsider its interpretation of the rules, and Secretary Ross said that reversing the agency’s decision “could impair the Census Bureau’s ability to reach every person as part of the upcoming 2020 Census as is constitutionally required.”
Secretary Ross noted that the U.S. Supreme Court, in Campbell-Ewald Co. v. Gomez (136 S.Ct. 663 (2016)), indicated that federal contractors are immune from TCPA liability when they comply with the government’s instructions. In 2016, the FCC agreed with the Supreme Court’s analysis when it decided that contractors acting as agents of the federal government are not “persons” under the TCPA, “when the contractor has been validly authorized to act as the government’s agent and is acting within the scope of its contractual relationship with the government, and the government has delegated to the contractor its prerogative to make autodialed or prerecorded- or artificial-voice calls to communicate with its citizens.”
Secretary Ross explained that reversing course now would have “a devastating impact on Federal agencies that use contractors to complete critical missions, particularly the Census Bureau . . . .” The Census Bureau intends to rely heavily on telephone calls for obtaining 2020 Census data. In particular, the Census Bureau will need to make calls to cell phones to reach hard-to-count populations—many of whom do not have landline telephones. Because of the periodic nature of the Census, the Department of Commerce must hire contractors to support Census outreach, including the Census Bureau’s telephone operations.
If the FCC were to reverse its decision on federal contractors, Commerce Secretary Ross said that the Census Bureau and its contractors should still not be subject to the TCPA because they do not use an “automatic telephone dialing system” (an ATDS or “autodialer”) when calling citizens. Secretary Ross said that the Census Bureau and its contractors do not use an ATDS to make calls because the equipment does not use a random or sequential number generator to dial phone numbers. Rather, callers will dial specific phone numbers provided by Census respondents, and the Census Bureau and its contractors use a live agent to speak to Census respondents.
The Department of Commerce also explained that rejecting established Supreme Court and FCC precedent will have dire consequences for the upcoming Census, as will overextending the scope of equipment covered by the TCPA’s ATDS definition. Secretary Ross noted that the Census is “a cornerstone of democracy that should not be put at risk.”