Next, the cites the and concludes that legal or policy rationale . . . would Order “record” “no justify making it more difficult for the federal government to inform citizens . . . or to otherwise contact citizens for . . . benevolent But just last month, the FCC proposed rules to make it more purposes.” difficult for federal contractors to make calls to collect federal debts. Presumably, the Commission had legal and/or policy rationale for doing so. And once again, insofar as the proper interpretation of the some statutory term includes federal contractors—which it does—Congress’s any “person” purpose trumps Commission reasoning. One last point. I do not doubt that federal contractors are entitled to some form of derivative immunity from suit. And I do not doubt that the federal common law of agency is relevant to that determination. But it is not the place to define the proper contours of the federal common Commission’s law of immunity or its application to federal contractors. The federal common law of immunity is a general body of law that covers numerous agencies. It extends to defense, healthcare, the environment, telecommunications, and much more. We cannot opine—at least not with any authority afforded judicial deference—on its scope or meaning, particularly as we announce its incipient application to the TCPA only today. And we not opine given that a petitioner has expressly asked us not to do so. Instead, we need should leave the issue of the precise scope of a federal derivative immunity—how it applies, contractor’s to whom it applies, and myriad other questions—in the capable hands of Congress and the courts. For these reasons, I approve in part and dissent in part.
Next, the Order cites the “record” and concludes that “no legal or policy rationale . . . would justify making it more difficult for the federal government to inform citizens . . . or to otherwise contact citizens for . . . benevolent purposes.” But just last month, the FCC proposed rules to make it more difficult for federal contractors to make calls to collect federal debts. Presumably, the Commission had some legal and/or policy rationale for doing so. And once again, insofar as the proper interpretation of the statutory term “person” includes federal contractors—which it does—Congress’s purpose trumps any Commission reasoning. One last point. I do not doubt that federal contractors are entitled to some form of derivative immunity from suit. And I do not doubt that the federal common law of agency is relevant to that determination. But it is not the Commission’s place to define the proper contours of the federal common law of immunity or its application to federal contractors. The federal common law of immunity is a general body of law that covers numerous agencies. It extends to defense, healthcare, the environment, telecommunications, and much more. We cannot opine—at least not with any authority afforded judicial deference—on its scope or meaning, particularly as we announce its incipient application to the TCPA only today. And we need not opine given that a petitioner has expressly asked us not to do so. Instead, we should leave the issue of the precise scope of a federal contractor’s derivative immunity—how it applies, to whom it applies, and myriad other questions—in the capable hands of Congress and the courts. For these reasons, I approve in part and dissent in part.