In a Declaratory Ruling Friday, the Federal Communications Commission (“FCC”) confirmed that COVID-19 related calls and text messages from public health officials serve an “emergency purpose” and as such are excluded from the prior express consent requirements of the Telephone Consumer Protection Act (“TCPA”). The declaratory ruling cites the immediate need for hospitals, health care providers, state and local officials, and other government personnel to lawfully communicate information about the coronavirus and spread knowledge about mitigation measures without fear of violating the TCPA. Consequently, public health officials may communicate through automated or prerecorded calls (including text messages) without prior express consent from the recipient.
You might recall from previously published blogs, the TCPA prohibits the use of automated or prerecorded calls to any mobile telephone number without the prior express consent of the person being called. This prohibition is subject to certain exceptions, one of which is when calls are necessary in situations affecting the health and safety of consumers, commonly referred to as an “emergency purpose.”
The FCC’s ruling clarifies that the emergency purpose exception may be used for COVID-19 communications within two parameters. First, the caller must be a hospital, health care provider, state or local health official, or other governmental official. Second, the communication must be solely information, made necessary because of the COVID-19 outbreak, and directly related to the imminent health and safety risks associated with COVID-19. For example, a call made by a county official to inform citizens of shelter in place requirements, quarantines, or school closures all necessitated by the national emergency would fit squarely within the definition of an emergency exception.
By contrast, calls advertising commercial products & services such as grocery delivery, cleaning services, or home test kits, are all excluded from this definition. The FCC also expressly indicated that debt collection calls for health related treatments also do not fit within the exception. General commercial enterprises should be wary of relying on the emergency purpose exception for COVID-19 communications unless those communications fit within the two parameters set by the FCC.
Mac Murray & Shuster will continue monitoring the FCC’s actions relating to COVID-19 and the TCPA and will keep you updated on the latest happenings.
* Ali Najaf contributed to this post.