On March 20, 2020 the FCC issued a Declaratory Ruling specifically outlining how calls and messages will be treated under the Telephone Consumer Protection Act (“TCPA”) with regard to the novel coronavirus (“COVID-19”). In its sua sponte Declaratory Ruling, The FCC exempted certain calls related to the COVID-19 pandemic from TCPA requirements – but only calls made by certain callers regarding certain topics.
Generally, regardless of COVID-19, it is important to be aware that TCPA 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. Of course, those calls which have always fallen within the emergency purpose exemption remain untouched by this Order.
We discuss the revised guidelines in light of COVID-19 below, taking particular note of the FCC’s March 20, 2020 Declaratory Ruling regarding COVID-19 calls and texts.
The TCPA and COVID-19: the Emergency Purpose Exception Applies Narrowly
The TCPA’s rules and regulations are still very much in effect during the current pandemic, including 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.
In its March 20 Ruling, the FCC expressly narrowed how the emergency purpose exception will be applied to COVID-19 calls and texts. The FCC first stated that in order to qualify as an emergency purpose call exempt from the TCPA (i.e., the “COVID-19 safe harbor”), COVID-19 related calls must be from a
- health care 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 types of calls and messages 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 health care 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, in the COVID-19 safe harbor, the FCC has made provided an extremely narrow, but guaranteed emergency purpose exception to TCPA liability as it applies for COVID-19. That said, the FCC’s Ruling does not impact the general availability of the TCPA’s emergency purpose exception and should instead be viewed as a safe harbor for those callers who appropriately qualify within the scope of the FCC’s guidance. In other words, emergency calls related to COVID-19 are not expressly prohibited and may still qualify for the emergency purpose exception. 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 FCC’s COVID-19 TCPA Safe Harbor:
- To qualify for the emergency purpose exception under the FCC’s COVID-19 safe harbor, when placing outbound calls and text messages for emergency purposes, the messages must be from a hospital, a health care 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 COVID-19 safe harbor 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 safe harbor, 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.
- Make sure that no state-specific restrictions on calling during state of emergencies apply. See discussion here.
- Remember, though, that the Order does not impact the general availability of the emergency purpose exemption. This Order should be viewed as a safe harbor and does not prohibit other emergency calls related to COVID-19.
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.