The Telephone Consumer Protection Act (the TCPA) restricts telemarketing and the use of automated telephone equipment for phone calls, faxes, and text messages. The TCPA provides a private right of action and significant statutory penalties, and therefore is an area of significant risk for any company that communicates with its customers, particularly by phone or text. In an effort to ease restrictions in light of the COVID-19 outbreak, the Federal Communications Commission (FCC) has issued guidance clarifying that informational calls that are directly related to the imminent health or safety risk arising out of the COVID-19 outbreak and made by certain types of callers are exempt from the TCPA requirements under the “emergency purposes exception.”
Under the TCPA, telemarketers are required to obtain prior express written consent before making calls to landline or wireless phones with prerecorded telemarketing messages and before using an automatic telephone dialing system (ATDS) to call or text any wireless phones with telemarketing messages.
Notably, the TCPA expressly excludes calls made for “emergency purposes,” from the Act, including “calls made necessary in any situation affecting the health and safety of consumers.” This exception is intended for situations posing “significant risks to public health and safety” where the use of such calls could “speed the dissemination of information regarding” such risks or conditions.
In the wake of the COVID-19 outbreak in the United States and the White House’s proclamation of a national emergency, the FCC issued a Declaratory Ruling on March 20, 2020 (the Ruling), explaining that the FCC has determined that the COVID-19 outbreak constitutes “an imminent health risk to the public” under the “emergency purposes” exception described above. The Ruling further provides criteria for determining whether a call relating to the COVID-19 pandemic qualifies for the exception:
- The caller must be: (1) calling from a hospital, (2) a health care provider, (3) a state or local health official, or other government official, or (4) a person acting on behalf of such an organization and on its express direction; and
- The content of the call must be solely informational, made necessary as a result of the COVID-19 outbreak, and directly related to the imminent health or safety risk arising out of the COVID-19 outbreak.
Under the Ruling, calls or texts made by or on behalf of a health care provider that include information regarding measures to address the COVID-19 outbreak would be exempt from the requirements and restrictions under the TCPA. This could include calls or texts regarding office closures, additional safety precautions, or new facility policies on visitation. Similarly, the Ruling would also exempt calls by governmental officials regarding shelter-in-place requirements, quarantines, school closures, or other similar information relating to the COVID-19 outbreak. Notably, calls containing advertising or telemarketing of services would not be exempt under the Ruling (e.g., calls advertising commercial home delivery services or the sale of test kits). Similarly, calls made to collect debt, even debt related to health care treatment, would also not qualify for the exception. Finally, the Ruling indicates that the FCC will continue to closely monitor complaints regarding such calls and will continue to aggressively enforce its rules in this regard. The FCC has not identified an end date for application of the exception.
With businesses of all types – and especially health care providers – dealing with unprecedented changes to their business models, the TCPA and other privacy laws include exceptions for certain disclosures and communications. The FCC’s confirmation that the COVID-19 outbreak qualifies for such an exception is not surprising but should provide comfort to health care providers who are trying to communicate with patients about necessary appointment changes, office closings, and safety precautions. Health care providers should still be thoughtful in their communications to ensure that they remain purely informational and should watch for additional guidance from the FCC when the pandemic wanes and such communications are no longer necessary.