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FCC Weighs In On Emergency Exception to TCPA Regarding COVID-19 Calls and Texts FCC Weighs In On Emergency Exception to TCPA Regarding COVID-19 Calls and Texts

FCC Weighs In On Emergency Exception to TCPA Regarding COVID-19 Calls and Texts

The Telephone Consumer Protection Act (“TCPA”) regulates making pre-recorded telephone calls, calls made using an Automatic Telephone Dialing System and sending text messages. Schools, businesses, health care institutions and providers utilizing any of the aforementioned communications methods in the COVID-19 pandemic should be aware that, while the TCPA contains an emergency purposes exception allowing such communications methods to be utilized in an emergency, there are limits to the exception.

The TCPA and the FCC’s implementing rules prohibit: (1) making telemarketing calls using an artificial or prerecorded voice to residential telephones without prior express consent and (2) making any non-emergency call using an automatic telephone dialing system (“ATDS”) or an artificial or prerecorded voice to a wireless telephone number without prior express consent. (47 U.S.C. §227(b)(1)(A)). The TCPA expressly exempts from these prohibitions calls made for “emergency purposes.” The FCC has defined “emergency calls” as “calls made necessary in any situation affecting the health and safety of consumers.” 47 C.F.R. §64.1200(f)(4). These emergency calls do not require prior express consent of the called party. However, if the call or text message includes or introduces an advertisement or constitutes telemarketing, prior express written consent is required. The penalty for violating the TCPA is draconian - $500 per call or text, which may be trebled to $1,500 per call for a knowing or willful violation. 

In an August 4, 2016 Declaratory Order,[1] the FCC ruled that school callers may lawfully make robocalls and send automated texts to student family wireless phones pursuant to the “emergency purpose” exception without violating the TCPA. The FCC ruled that school callers may lawfully make autodialed calls and send automated texts for emergencies including weather closures, fire, health risks, threats, and unexcused absences. In the same order, the FCC also ruled that utility companies may make robocalls and send automated texts to their customers concerning matters closely related to the utility service, such as a service outage or warning about potential service interruptions due to severe weather conditions, because their customers provided consent to receive these calls and texts when they gave their phone numbers to the utility company.

On March 20, 2020, the FCC issued a declaratory order[2] in which it stated it was confirming that “[T]he COVID-19 pandemic constitutes an “emergency” under the Telephone Consumer Protection Act (TCPA) and that consequently hospitals, health care providers, state and local health officials, and other government officials may lawfully communicate information about the novel coronavirus as well as mitigation measures without violating federal law.”

Limits on COVID-19 Calls/Texts Qualifying Under the TCPA Emergency Purposes Exception
 
The FCC stated there are limits to what COVID-19 pandemic calls will qualify for the emergency purposes exception. It stated that, in determining whether a call qualifies as a call made for the emergency purpose exception, it will look at the identity of the caller and content of the call. In order to quality under the emergency purposes exception:
 
  • The caller/sender must be a hospital, health care provider, state or local health official, or other government official, as well as a person under the express direction of such an organization and acting on its behalf; and
  • The content of the call/text must be solely informational, made necessary because of the COVID-19 outbreak, and directly related to the imminent health or safety risk arising out of the COVID-19 outbreak. 
Examples of Qualifying Calls/Texts
 
The FCC gave examples of qualifying COVID-19 calls/texts. It stated that a call/text originating from a hospital that provides vital and time-sensitive health and safety information that citizens welcome, expect, and rely upon to make decisions to slow the spread of the COVID-19 disease would fall squarely qualify. It also stated that an informational call/text designed to inform and update the public regarding measures to address the current pandemic made on behalf of, and at the express direction of, a health care provider would be made in a situation that “affect[s] the health and safety of consumers” and would be exempt.
 
With respect to governmental callers it stated a call made by a county official to inform citizens of shelter-in-place requirements, quarantines, medically administered testing information, or school closures necessitated by the national emergency would be made for an emergency purpose, as such measures are designed to inhibit the spread of the disease.
 
The FCC also gave examples of COVID-19 calls that do not qualify under the emergency purposes exception. It stated calls/texts that advertise COVID-19 related services or businesses such as grocery delivery services, health insurance, cleaning services, or home test kits, do not qualify as under the emergency purposes exception under the TCPA.

Bart Murphy (bart.murphy@icemiller.com) and Isaac Colunga (isaac.colunga@icemiller.com) are Litigation Partners at Ice Miller LLP and are the leaders of Ice Miller’s TCPA defense team. 

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.
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