Calling for Government Clients: Contractor Immunity Under the TCPA
A company that calls or texts on behalf of a government agency doesn’t automatically share the agency’s immunity from TCPA suits. The Supreme Court held in Campbell-Ewald that federal contractors don’t share the government’s immunity, and that a contractor who violates both federal law and the government’s explicit instructions has no derivative immunity at all. The FCC has since confirmed that contractors are covered. Contractors still have real defenses: following the agency’s instructions, consent, and, sometimes, not being the maker of the call.
Can a company calling for a government agency be sued under the TCPA?
Yes. The agency is protected. The contractor is not, at least not automatically.
In Campbell-Ewald Co. v. Gomez, 577 U.S. 153 (2016), the Navy hired a marketing company for a recruiting campaign that included text messages, conditioned on sending them only to people who had “opted in” to receive solicitations. A subcontractor sent the Navy’s message to a list of numbers, and a man who said he never consented sued. The Campbell-Ewald Court noted that the United States and its agencies “are not subject to the TCPA’s prohibitions because no statute lifts their immunity.” Then it asked: “Do federal contractors share the Government’s unqualified immunity from liability and litigation? We hold they do not.”
The Campbell-Ewald Court explained that contractor immunity, “unlike the sovereign’s, is not absolute.” And it drew the line that matters most for vendors: “When a contractor violates both federal law and the Government’s explicit instructions, as here alleged,” no derivative immunity “shields the contractor from suit by persons adversely affected by the violation.”
Where does that leave derivative immunity?
Available in narrower cases, and decided by the courts.
Campbell-Ewald discussed Yearsley v. W.A. Ross Construction Co., 309 U.S. 18 (1940), the older decision behind the doctrine, and distinguished it. A contractor that did what the government authorized and directed is in a different position. In Cunningham v. General Dynamics Information Technology, Inc., 888 F.3d 640 (4th Cir. 2018), a contractor made calls about health-coverage enrollment for a federal agency and was sued under the TCPA. The Fourth Circuit read Campbell-Ewald to mean that, when the authorization was validly conferred, “‘there is no liability on the part of the contractor’ who simply performed as the Government directed,” and it affirmed “the district court’s dismissal for lack of subject matter jurisdiction.” A contractor that sent messages the government told it not to send has no such protection.
California contractors should know one procedural wrinkle. In Childs v. San Diego Family Housing LLC, No. 20-55400 (9th Cir. Jan. 14, 2022), the Ninth Circuit held that an order denying derivative sovereign immunity “was not an immediately appealable collateral order” and dismissed the appeal. In the Ninth Circuit, a contractor that loses the immunity argument in district court generally has to wait for a final judgment to appeal it.
The FCC took the same approach when it revisited contractor calls in 2020. In its Order on Reconsideration, FCC 20-182, released December 14, 2020, the FCC agreed that section 227(b)(1) applies to federal contractors as persons “even when they are acting as agents of the federal government.” It added that contractors “may also qualify for forms of derivative immunity when making calls on behalf of the federal government,” and that the FCC did “not alter or impair the ability of contractors to invoke derivative immunity.” And the order said “it is more appropriate for the courts to determine whether the contractor satisfies the applicable test for derivative immunity.”
The same order extended its reasoning to state contractors and addressed local governments, which the FCC 20-182 found are persons “subject to TCPA restrictions.” A vendor calling for a city or county can’t count on the client’s status for protection either.
After McLaughlin Chiropractic Associates, Inc. v. McKesson Corp., 606 U.S. 146 (2025), district courts aren’t bound by FCC interpretations. A contractor can argue about the meaning of “person” in court. Our post on McLaughlin and FCC deference covers that change.
Can a contractor avoid liability as something other than the caller?
Sometimes. The FCC’s 2020 order recognized a maker-of-the-call defense.
In FCC 20-182, the FCC agreed “that a federal contractor may be able to avoid liability under the TCPA” if it isn’t the maker of the call. It looks at “the totality of the facts and circumstances surrounding the placing of a particular call,” asking who “took the steps necessary to physically place the call” and “whether another person or entity was so involved in placing the call as to be deemed to have initiated it,” according to FCC 20-182. On the facts before it, the FCC found a telephone town-hall platform wasn’t the maker of the government’s calls.
For a platform vendor, the practical question is control: who chose the recipients, who wrote the message, and who decided when to send. A vendor that supplies technology while the agency picks the list and the content is in a better position than one that builds the list itself.
That has a contracting lesson. Government work often comes with a statement of work that says little about consent. In my view, a contractor should get the agency’s instructions on who may be contacted, and on what basis, in writing before the first message goes out. Campbell-Ewald turned on evidence that the Navy had limited the campaign to people who opted in. A contractor that can show it followed written limits like those is arguing from strength. One that can’t show any instructions is left arguing about what the agency probably wanted. Subcontractors should ask for the same paper trail from the prime contractor.
Does the old government-debt exception help contractors that collect for agencies?
No. It’s gone.
Congress added an exception in 2015 for robocalls made solely to collect debts owed to or backed by the United States. The Supreme Court held that exception unconstitutional in Barr v. American Association of Political Consultants, Inc., 591 U.S. 610 (2020). Justice Kavanaugh’s plurality opinion in Barr wrote that “the correct result in this case is to sever the 2015 government-debt exception and leave in place the longstanding robocall restriction.” A servicer making autodialed or prerecorded calls on federal debt needs the same consent as any other caller. Collection contractors that built their calling programs around the 2015 exception should confirm that each number on their lists came with consent from the borrower, and that the records showing it can be produced.
Government-contract calling claims and the defenses that answer them
| Claim theory | Statute or rule | Exposure per call or text | Defenses |
|---|---|---|---|
| Autodialed or prerecorded calls or texts without consent | 47 U.S.C. § 227(b)(1)(A)(iii), (b)(1)(B), (b)(3) | $500 or actual loss, whichever is greater, and up to $1,500 if willful or knowing | Consent, derivative immunity where the contractor followed the agency’s authorization and instructions, not the maker of the call, or no autodialer used |
| Calls on federal debt under the struck exception | 47 U.S.C. § 227(b)(1)(A)(iii) | Same | Consent, since the exception no longer applies |
| Telemarketing to Registry numbers by a contractor selling its own services | 47 U.S.C. § 227(c)(5) | Up to $500 or actual loss, whichever is greater, and up to $1,500 if willful or knowing | Residential subscriber and more-than-one-call requirements, other Do Not Call defenses, and, for texts, the argument that texts aren’t telephone calls under § 227(c)(5) (district courts are split) |
The damages rules come from 47 U.S.C. § 227. The autodialer definition requires “the capacity to use a random or sequential number generator to either store or produce phone numbers to be called,” under Facebook, Inc. v. Duguid, 592 U.S. 395 (2021).
What a government contractor should gather when a claim arrives
The records that support derivative immunity are mostly contract documents, and they sit in procurement files, not the dialer. The firm’s TCPA defense attorneys in California page covers how claims move from demand to lawsuit. Then:
- Preserve the call and text logs, platform data, and any consent records for the numbers, under a litigation hold.
- Export opt-out and internal do-not-call records with dates.
- Pull National Do Not Call Registry scrub records for any campaign that could be called marketing.
- Collect the government contract, task orders, statements of work, and every written instruction from the agency about who could be contacted and what could be said, plus subcontractor agreements and the messages sent.
- Talk to a lawyer before answering the claim, contacting the recipient, or discussing the matter with the agency.
Questions contractors ask about TCPA exposure
If the agency gave us the call list, are we protected?
It helps, but it isn’t automatic. Campbell-Ewald denied immunity where the contractor allegedly violated the government’s explicit instructions. A contractor that stayed within the agency’s written authorization has the stronger derivative-immunity argument, and documentation of those instructions is the evidence.
Are calls for a state agency treated differently?
The FCC’s 2020 order extended its “person” analysis to state contractors and left derivative immunity for courts to decide. Local governments themselves are “persons” under that order. Whether a state agency’s own immunity reaches a contractor is a question of state and federal immunity law, which this post doesn’t resolve.
Does Campbell-Ewald still matter for settlement offers?
Yes. The Campbell-Ewald Court also held that “an unaccepted settlement offer or offer of judgment does not moot” a plaintiff’s case. A contractor can’t end a class action just by offering the named plaintiff full relief.
Defending a government contractor in a TCPA suit
If your company is accused of TCPA violations for calls or texts made on behalf of a public agency, the contract, the agency’s written instructions, and who controlled the campaign usually decide whether immunity or the maker-of-the-call defense applies. Rosenberger + Kawabata represents businesses defending TCPA lawsuits and class actions through its business litigation practice, including claims against vendors calling for government clients. Contact Rosenberger + Kawabata online for a free and confidential consultation, or call (310) 894-6921.
Sources
The statute is 47 U.S.C. § 227. The FCC order is the Order on Reconsideration, FCC 20-182 (Dec. 14, 2020).
The court decisions are Cunningham v. General Dynamics Information Technology, Inc., 888 F.3d 640 (4th Cir. 2018); Childs v. San Diego Family Housing LLC, No. 20-55400 (9th Cir. Jan. 14, 2022); Campbell-Ewald Co. v. Gomez, 577 U.S. 153 (2016); Barr v. American Association of Political Consultants, Inc., 591 U.S. 610 (2020); McLaughlin Chiropractic Associates, Inc. v. McKesson Corp., 606 U.S. 146 (2025); and Facebook, Inc. v. Duguid, 592 U.S. 395 (2021).
This post is general information about the Telephone Consumer Protection Act and related laws as of March 28, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Courts and the FCC change the rules in this area often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.