Federal Register / Vol. 86, No. 28 / Friday, February 12, 2021 / Rules and Regulations 9299 

that use of the TV bands by primary and 

secondary broadcast users have priority 

over wireless microphones and white 

space devices. The Commission believes 

that preserving robust over-the-air 

broadcast television service remains an 

important spectrum allocation priority, 

especially to rural areas without 

adequate MVPD and broadband service 

alternatives. In addition, the 

Commission has recognized the promise 

of next generation ATSC 3.0 service by 

over-the-air television broadcasters to 

expand the universe of potential uses of 

broadcast spectrum capacity for new 

and innovative services in ways that 

will complement the nation’s 

burgeoning 5G networks and usher in a 

new wave of innovation and 

opportunity. As NAB and a number of 

broadcasters noted in their 2015 

comments, adoption of the proposed 

rules would serve to freeze full power 

stations in place and hamstring their 

ability to expand or innovate to better 

serve their viewers. Having restructured 

the TV band, the Commission finds that 

to now adopt a requirement that 

primary and/or secondary television 

stations protect spectrum availability for 

white space devices and wireless 

microphones in the smaller, more 

densely packed television band, would 

not serve the public interest. Moreover, 

NAB points out that the proposals 

would require ‘‘novel engineering 

studies’’ that ‘‘would be expensive and 

time-consuming, particularly for smaller 

broadcasters’’ where ‘‘the cost of 

conducting such studies is likely to be 

multiples of current engineering design 

costs.’’ Significantly, television stations 

would bear the administrative burden of 

studying and proving the availability of 

channels for other users in order to have 

an application that is otherwise in the 

public interest granted—both in 

congested areas where a vacant channel 

may not be available in the television 

band and in less congested areas where 

more spectrum is available such that 

analysis is not warranted. Therefore, the 

Commission finds that, on balance, 

seeking to preserve a vacant channel for 

shared use by white space devices and 

wireless microphone operations at this 

time, considering all of the actions that 

the Commission has taken since 2015 to 

promote those users’ interests, are 

outweighed by the burdens of the 

proposals on broadcasters and the 

Commission terminates the proceeding. 

Federal Communications Commission. 

Marlene Dortch, 

Secretary. 

Editorial Note: The Office of the Federal 

Register received this document on December 

15, 2020. 

[FR Doc. 2020–28025 Filed 2–11–21; 8:45 am] 

BILLING CODE 6712–01–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Chapter I 

[CG Docket No. 02–278; FCC 20–182; FRS 

17356] 

Government and Government 

Contractor Calls Under the Telephone 

Consumer Protection Act of 1991 

AGENCY: Federal Communications 

Commission. 

ACTION: Adjudicatory ruling. 

SUMMARY: In this document, the 

Commission finds that state government 

callers, like federal government callers, 

are not ‘‘persons’’ for purposes of the 

Telephone Consumer Protection Act 

(TCPA) because they are sovereign 

entities. The Commission also clarifies 

that a local government caller is a 

‘‘person’’ subject to the TCPA. On 

reconsideration of the Broadnet 

Declaratory Ruling, the Commission 

reverses its previous order to the extent 

that it provided that a contractor making 

calls on behalf of the federal 

government was not a ‘‘person’’ subject 

to the restrictions of the TCPA. The 

Commission also clarifies that a state or 

local government contractor, like a 

federal government contractor, is a 

‘‘person’’ and thus not exempt from the 

TCPA’s restrictions. This action was 

taken in response to petitions that 

sought clarification of these issues and 

removes any uncertainty on when 

governmental callers or contractors 

making calls on their behalf are required 

to obtain the prior express consent of 

called parties. 

DATES: Effective February 12, 2021. 

FOR FURTHER INFORMATION CONTACT: 

Richard D. Smith of the Consumer and 

Governmental Affairs Bureau at (717) 

338–2797 or Richard.Smith@fcc.gov; or 

Kristi Thornton at (202) 418–2467 or 

Kristi.Thornton@fcc.gov. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s Order on 

Reconsideration, document FCC 20– 

182, released on December 14, 2020. 

The full text of document FCC 20–182 

is available online at https://

docs.fcc.gov/public/attachments/FCC20-182A1.pdf. To request this document 

in accessible formats for people with 

disabilities (e.g., Braille, large print, 

electronic files, audio format) or to 

request reasonable accommodations 

(e.g., accessible format documents, sign 

language interpreters, CART), send an 

email to fcc504@fcc.gov or call the 

FCC’s Consumer and Governmental 

Affairs Bureau at (202) 418–0530 

(voice). 

Synopsis 

1. On reconsideration of the Broadnet 

Declaratory Ruling, the Commission 

reverses its previous order to the extent 

that it provided that a contractor making 

calls on behalf of the federal 

government was not a ‘‘person’’ subject 

to the restrictions in section 227(b)(1) of 

the TCPA. The Commission also 

clarifies that a state government caller 

making calls in the conduct of official 

government business is not a ‘‘person’’ 

subject to section 227(b)(1) of the TCPA, 

while a state or local government 

contractor, like a federal contractor, is a 

‘‘person’’ and thus not exempt from the 

TCPA’s restrictions. Finally, the 

Commission clarifies that a local 

government is a ‘‘person’’ subject to the 

TCPA. As such, the Commission grants 

in part the National Consumer Law 

Center (NCLC) petition for 

reconsideration, denies the Professional 

Services Council (PSC) petition for 

reconsideration, reverses the 

Commission’s Broadnet Declaratory 

Ruling in part, and grants in part and 

denies in part Broadnet’s petition for 

declaratory ruling. 

A. Federal Contractors are Subject to 

Section 227(b)(1) of the TCPA 

2. The Commission finds that a 

federal government contractor is a 

‘‘person’’ under section 227(b)(1). The 

term ‘‘person’’ as used in the TCPA and 

defined in the Communications Act 

(Act) expressly includes an ‘‘individual, 

partnership, association, joint-stock 

company, trust, or corporation’’ ‘‘unless 

the context otherwise requires.’’ Every 

federal contractor, including those 

acting as agents, falls within one of 

these categories. And, unlike the federal 

government itself, there is no 

longstanding presumption that a federal 

contractor is not a ‘‘person.’’ Nor does 

the Commission find any ‘‘context that 

otherwise requires’’ it to ignore the 

express language of the Act’s definition 

of the term ‘‘person’’ in this situation. 

Absent any applicable presumption to 

the contrary, the express definition of 

‘‘person’’ as contained in the Act is 

controlling. 

3. Federal government contractors 

may obtain consumers’ prior express 

consent to make calls covered by the 

9300 Federal Register / Vol. 86, No. 28 / Friday, February 12, 2021 / Rules and Regulations 

TCPA. Such contractors may also 

qualify for forms of derivative immunity 

when making calls on behalf of the 

federal government—the Commission 

does not alter or impair the ability of 

contractors to invoke derivative 

immunity from liability when making 

calls on behalf of the federal 

government. 

4. In this document, the Commission 

finds that it incorrectly applied 

precedent on agency to federal 

government-contractor relationships in 

the Broadnet Declaratory Ruling. 

Specifically, the Commission grounded 

its decision in the DISH Declaratory 

Ruling, which pertained to a nongovernmental ‘‘person’’ subject to the 

TCPA and whether it is vicariously 

liable for the actions of its nongovernmental agents. As a result, the 

Commission finds that precedent does 

not bear on the issues here—which 

callers are TCPA ‘‘persons’’—but 

instead involved principals and agents 

that were undoubtedly ‘‘persons.’’ 

5. Maker of the Call. In this document, 

the Commission finds that a federal 

contractor may be able to avoid liability 

under the TCPA if it is not the ‘‘maker 

of the call.’’ The Commission previously 

clarified that a caller may be found to 

have made or initiated a call in one of 

two ways: First, by ‘‘tak[ing] the steps 

necessary to physically place a 

telephone call’’; and second, by being 

‘‘so involved in the placing of a specific 

telephone call as to be directly liable for 

making it.’’ The Commission stated that, 

in determining the maker of the call, it 

would consider ‘‘the totality of the facts 

and circumstances surrounding the 

placing of a particular call to determine: 

(1) Who took the steps necessary to 

physically place the call; and (2) 

whether another person or entity was so 

involved in placing the call as to be 

deemed to have initiated it, considering 

the goals and purposes of the TCPA.’’ 

6. In this document, the Commission 

states that it will continue to apply this 

analysis to assess TCPA liability of 

parties, including government 

contractors, on a case-by-case basis. 

Based on these fact-specific criteria, 

Broadnet states that its ‘‘government 

customers, and not Broadnet, make all 

decisions regarding whether to make a 

call, the timing of the call, the call 

recipients, and the content of the call.’’ 

It further states that its ‘‘government 

customer takes the steps physically 

necessary to initiate a telephone town 

[hall] call,’’ while Broadnet’s role is to 

‘‘manage the technical aspects of the 

service and to ensure that its customers 

do not use the platform unlawfully.’’ 

7. The Commission finds that 

Broadnet is not the maker of the call, 

but rather that Broadnet’s government 

client is the maker of the call because 

that government client is so involved in 

placing the call as to be deemed to have 

initiated it. 

B. State Governments and State 

Government Contractors 

8. The Commission clarifies that state 

government callers in the conduct of 

official business likewise do not fall 

within the meaning of ‘‘person’’ in 

section 227(b)(1), while state 

contractors, like their federal 

counterparts, are ‘‘person[s]’’ under that 

provision. As the Commission has 

noted, there is a ‘‘longstanding 

interpretive presumption’’ that the word 

‘person’ does not include the sovereign 

. . . [except] upon some affirmative 

showing of statutory intent to the 

contrary.’’ The Supreme Court has 

confirmed that this presumption is 

applicable to state governments. 

Moreover, neither the TCPA nor the 

Communications Act defines ‘‘person’’ 

to include state governmental entities. 

9. This clarification is limited to calls 

made by state government callers in the 

conduct of official business and does 

not exempt other types of calls made by 

state officials, such as those related to 

campaigns for re-election. Nevertheless, 

the Commission encourages state 

governments to make efforts to honor 

consumer requests to opt out of such 

exempted calls to minimize any 

consumer privacy implications. 

10. The Commission states that it is 

limiting its interpretation of ‘‘person’’ as 

excluding state governments to the 

specific statutory provision before it: 

Section 227(b)(1) of the TCPA. As in the 

Broadnet Declaratory Ruling, the 

Commission makes no finding with 

respect to the meaning of ‘‘person’’ as 

used elsewhere in the Act. 

11. For the same reasons the 

Commission found federal contractors 

are ‘‘persons’’ under section 227(b)(1) of 

the TCPA, the Commission now finds 

that contractors acting on behalf of state 

governments are likewise ‘‘persons.’’ 

Such contractors fall within the express 

language of the Communications Act’s 

definition of ‘‘person’’ and it finds no 

compelling argument to the contrary. As 

with federal contractors, this ruling 

leaves it to the courts to apply the body 

of existing immunity law to state 

contractors and to make determinations 

of derivative immunity on a case-bycase basis. 

C. Local Governments and Local 

Government Contractors 

12. The Commission clarifies that 

local government entities, including 

counties, cities, and towns, are 

‘‘persons’’ within the meaning of section 

227(b)(1) and are, therefore, subject to 

the TCPA. Specifically, the Commission 

finds that the definition of ‘‘person’’ 

encompasses local governments because 

they are not sovereign entities and have 

generally been treated as persons subject 

to suit. In addition, the Commission 

finds that, even if the definition of 

‘‘person’’ is ambiguous as applied to 

local governments, the underlying 

policy goals and legislative history of 

the TCPA support a finding that TCPA 

restrictions apply to local government 

entities. 

13. The law has long recognized that 

a municipal corporation is a local 

political entity, such as a city or town, 

formed by charter from the state. 

Municipal corporations, like private 

corporations, have been ‘‘treated alike in 

terms of their legal status as persons 

capable of suing and being sued.’’ ‘‘The 

archetypal American corporation of the 

eighteenth century [was] the 

municipality,’’ and local governments 

generally are incorporated under state 

law and operate pursuant to a charter 

outlining their incorporation. The 

Commission further notes that all states 

have adopted some form of municipal 

corporate structure and that the federal 

government often treats incorporated 

and non-incorporated areas similarly. 

14. The Commission finds that the 

lack of any clear indication that 

Congress intended to exclude local 

governments from the TCPA is evidence 

that Congress intended such 

government entities to fall under its 

purview. 

15. The Commission further finds that 

the underlying goals and legislative 

history of the TCPA separately show 

that Congress intended local 

governments to be subject to the law’s 

restrictions. Congress’ intent to prohibit 

nuisance calls to consumers is 

instructive in the Commission’s 

interpretation of any ambiguity within 

the statute. Because of Congress’ clear 

intent to protect consumers, the 

Commission interprets any ambiguity to 

the benefit of the consumer. 

16. The Commission also clarifies that 

a local government contractor is a 

‘‘person,’’ as that term is used in section 

227(b)(1) of the TCPA. Because local 

governments and their contractors are 

‘‘persons,’’ they are subject to section 

227(b)(1) of the TCPA and must abide 

by the requirements contained therein, 

including obtaining prior express 

consent when making autodialed or 

artificial or prerecorded voice calls to 

certain types of telephone numbers such 

as wireless numbers. 

17. As with other ‘‘persons’’ subject to 

the TCPA, local governments and their 

Federal Register / Vol. 86, No. 28 / Friday, February 12, 2021 / Rules and Regulations 9301 

contractors may avail themselves of the 

TCPA’s exemptions to the prior express 

consent requirement, such as calls made 

for ‘‘emergency purposes.’’ Nothing in 

the Commission’s decision impedes the 

ability of local governments or 

contractors to make emergency calls to 

wireless telephone numbers when such 

calls are necessary to protect the health 

and safety of citizens. The Commission 

has recently confirmed, for example, 

that government officials and public 

health care authorities, as well as a 

person under the express direction of 

such organizations and acting on its 

behalf, can make automated calls 

directly related to the imminent health 

or safety risks arising out of the COVID– 

19 pandemic without the prior express 

consent of the called party. 

Federal Communications Commission. 

Marlene Dortch, 

Secretary, Office of the Secretary. 

Editorial Note: The Office of the Federal 

Register received this document on December 

28, 2020. 

[FR Doc. 2020–29016 Filed 2–11–21; 8:45 am] 

BILLING CODE 6712–01–P 

GENERAL SERVICES 

ADMINISTRATION 

48 CFR Part 553 

[GSAR Case 2021–G509; Docket No. 2021– 

0005; Sequence No. 1] 

General Services Administration 

Acquisition Regulation; Removing 

Erroneous Guidance on Illustration of 

Forms 

AGENCY: Office of Acquisition Policy, 

General Services Administration (GSA). 

ACTION: Final rule. 

SUMMARY: The General Services 

Administration (GSA) is issuing this 

direct final rule amending the General 

Services Administration Acquisition 

Regulation (GSAR) to make a needed 

technical amendment. This technical 

amendment is to correct the Code of 

Federal Regulations and remove 

erroneous guidance on the illustration 

of forms. 

DATES: Effective: March 15, 2021. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Adina Torberntsson, Procurement 

Analyst, at gsarpolicy@gsa.gov for 

clarification of content. For information 

pertaining to status or publication 

schedules, contact the Regulatory 

Secretariat Division at 202–501–4755 or 

GSARegSec@gsa.gov. Please cite GSAR 

Case 2021–G509. 

SUPPLEMENTARY INFORMATION: 

I. Background 

GSA has been conducting a regulatory 

review initiative to identify areas which 

might be revised or eliminated. Upon 

review of GSAR part 553, we uncovered 

a discrepancy between the Code of 

Federal Regulations (CFR) and 

acquisition.gov. The current language in 

subpart 553.2 in the CFR was published 

in the Federal Register, Vol. 64, No. 

131, on July 9, 1999 and has not 

changed since. However, 

acquisition.gov has no such language. It 

is determined that all of the guidance in 

GSAR Part 553 in the CFR should be 

removed. 

II. Discussion of the Rule 

This direct final rule amends the 

GSAR to remove regulations regarding 

forms from subpart 553.2 and section 

553.300. The subpart has no content, 

just the header of ‘‘Illustrations of 

Forms’’. There is no prescription 

information that follows. In addition, 

text at 553.300 contains erroneous 

information on how to obtain copies of 

forms. Therefore, the entirety of GSAR 

Part 553 is unnecessary. 

List of Subjects in 48 CFR Part 553 

Government procurement. 

Jeffrey A. Koses, 

Senior Procurement Executive, Office of 

Acquisition Policy, Office of Governmentwide 

Policy, General Services Administration. 

PART 553 [REMOVED AND 

RESERVED] 

■ Therefore, under the authority of 41 

U.S.C. 121(c), GSA removes and 

reserves 48 CFR part 553. 

[FR Doc. 2021–02815 Filed 2–11–21; 8:45 am] 

BILLING CODE 6820–61–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 660 

[Docket No. 210205–0015] 

RIN 0648–BJ05 

Fisheries Off West Coast States; West 

Coast Salmon Fisheries; Rebuilding 

Coho Salmon Stocks 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS issues this final rule 

under the authority of the MagnusonStevens Fishery Conservation and 

Management Act (MSA) to approve and 

implement rebuilding plans 

recommended by the Pacific Fishery 

Management Council (Council) for three 

overfished salmon stocks: Juan de Fuca, 

Queets, and Snohomish natural coho 

salmon. NMFS determined in 2018 that 

these stocks were overfished under the 

MSA, due to spawning escapement 

falling below the required level for the 

3-year period 2014–2016. The MSA 

requires overfished stocks to be rebuilt, 

generally within 10 years. 

DATES: This final rule is effective March 

15, 2021. 

FOR FURTHER INFORMATION CONTACT: 

Peggy Mundy at 206–526–4323. 

SUPPLEMENTARY INFORMATION: 

Background 

On June 18, 2018, NMFS notified the 

Council that three stocks of coho salmon 

managed under the Council’s Pacific 

Coast Salmon Fishery Management Plan 

(FMP) met the overfished criteria of the 

FMP and the MSA, and the overfished 

determinations were announced in the 

Federal Register on August 6, 2018 (83 

FR 38292). Overfished is defined in the 

FMP to be when the 3-year geometric 

mean of a salmon stock’s annual 

spawning escapement falls below the 

reference point known as the minimum 

stock size threshold (MSST). The 3-year 

geometric mean of spawning 

escapement fell below MSST for all 

three coho salmon stocks for the period 

2014–2016. In response to the 

overfished determination, the Council 

developed rebuilding plans for these 

stocks, and the rebuilding plans were 

transmitted to NMFS on October 17, 

2019, for approval and implementation. 

NMFS published a proposed rule (85 FR 

61912, October 1, 2020) describing the 

rebuilding plans and soliciting 

comments from the public on the 

proposed rule and on the draft 

environmental assessments (EAs) that 

were prepared under the National 

Environmental Policy Act (NEPA). 

In this final rule, NMFS approves and 

implements the rebuilding plans for the 

three overfished coho salmon stocks. 

For Juan de Fuca and Queets natural 

coho, this rule adopts the existing 

harvest control rules, which use an 

annual abundance-based stepped 

harvest rate control rule with stockspecific abundance levels governing the 

total exploitation rates applied to 

forecast stock abundance levels. For 

Snohomish natural coho, this final rule 

amends the existing harvest control rule 

by adding a 10-percent buffer to the 

existing escapement goal and adjusting 

the abundance steps during the