In light of the coronavirus (“COVID-19”) and its impact on business operations, it is important to be aware that Telephone Consumer Protection Act restrictions on calling or texting consumers for a commercial purpose still apply. These national restrictions include rules governing consent to contact cellular telephones and rules regarding revocation of consent. Moreover, certain state public health emergency declarations also place additional restrictions on texting or calling consumers.
We discuss both the national and state-specific guidelines in light of COVID-19 below, taking particular note of the Federal Communications Commission’s March 20 Declaratory Ruling regarding COVID-19 calls and texts.
TCPA and COVID-19: Examining the Emergency Purpose Exception
While the TCPA’s rules and regulations still are very much in effect during the current pandemic, there are specific exemptions to TCPA consent requirements when the communication has an emergency purpose. Emergency purpose calls are defined as those necessary in situations “affecting the health and safety of consumers.” When placing calls under the TCPA’s emergency exemption, calls and texts are allowed to be sent to consumers without consent as long as the content and purpose of the communication is to alert them to an emergency situation.
Since this original article was posted, the FCC has issued a declaratory ruling specifically outlining how COVID-19 calls and messages will be treated under the TCPA. The FCC exempted certain calls related to the COVID-19 pandemic from TCPA requirements – but only calls made by certain callers regarding certain topics.
The FCC first stated that in order to qualify as an emergency purpose call exempt from the TCPA, COVID-19 related calls must be from a
- healthcare provider,
- state or local health official,
- other government official, and/or
- a person under the express direction of such an organization and acting on its behalf.
Secondly, the FCC clarified that the content of the call 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.”
Perhaps more importantly, the FCC also specified that certain forms of COVID-19-related messages are not emergency in nature. These include “advertising a commercial grocery delivery service, or selling or promoting health insurance, cleaning services, or home test kits.” The FCC further expressly noted that calls made to collect debt, even if such debt arises from related healthcare treatment, are not made for an “emergency purpose,” as those calls are not time-sensitive, do not “affect the health and safety of consumers,” and are not directly related to an imminent health or safety risk.
Accordingly, the FCC has made abundantly clear that the emergency purpose exception to TCPA liability as it applies for COVID-19 is extremely narrow and callers should take heed to comply with TCPA requirements prior to making any calls or sending any text messages if they do not fall into the constricted categories of callers and content outlined above.
How to comply with the TCPA during COVID-19:
- To qualify for the emergency purpose exception, when placing outbound calls and text messages for emergency purposes, the messages must be from a hospital, a healthcare provider, a state or local health official, other government official, and/or a person under the express direction of such an organization and acting on its behalf and specifically tailored to providing vital information or alerting consumers to the emergency situation.
- The exemption does not cover calls and texts that offer products and services, even if designed to address the COVID-19 emergency.
- Along these lines, dual-purpose calls and texts, i.e., calls and/or texts that contain additional messaging aside from a COVID-19-related purpose, are prohibited under the TCPA’s declaration.
- Remember, calls and text messages sent to consumers for a commercial purpose outside the emergency exemption as defined by the FCC are required to have the applicable level of TCPA consent.
- If, as a caller, an entity does not qualify for the COVID-19-specific emergency purpose exemption, then do-not-call requests (both contemporaneous and previous) should be honored to the extent possible. Further, if there is any question regarding the purpose of the call then adhering to do-not-call requests is still a best practice that should be followed.
State Specific Guidance
We are aware of two specific state legislative changes resulting from states of emergency associated with COVID-19: New York and Louisiana.
New York’s governor Andrew Cuomo has declared a state of emergency to address the effects of COVID-19. Said state of emergency notably triggers restrictions on sales calls via New York’s 2019 Nuisance Call Act. The law prohibits telemarketers from “knowingly making unsolicited sales calls to any individual…during a declared state of emergency.” Relevant exceptions include when callers have consent to contact the called party and/or have an Established Business Relationship. The text of the declaration says that it will remain in effect until September 7, 2020, unless it is rescinded sooner. It does appear that this restriction only applies to prerecorded message sales calls.
So as to ensure compliance with this legislation, any calls or texts to members who are residents of New York should be limited to express, COVID-19-related matters and/or have scripts approved as being “non-sales” related. Further, to the extent possible, for calls to members who are residents of New York, prior do-not-call requests should be honored.
Louisiana similarly has declared a state of emergency with telemarketing implications: under Louisiana law, telemarketing is strictly prohibited during a state of emergency with some exceptions. Those exceptions include telemarketing calls (i.e., calls made to encourage the sale and/or obtain information that will be used to solicit a sale via automated dialing or recorded message devices) made where there is an existing business relationship or prior business relationship that lapsed within six months of the call.
Accordingly, all calls and/or texts made to members that are residents of Louisiana should be screened to ensure that no “sales related” calls are made during the state of emergency. Further, prior do-not-call requests should be honored.
If you have questions regarding communications that qualify under the TCPA’s emergency purpose exemption or state-specific rules, our team is here to help.