In a January 15, 2021 ruling, the Federal Communications Commission ("FCC") exempted certain telephone calls from the Telephone Consumer Protection Act ("TCPA") ban on artificial or pre-recorded calls to residential lines. Acurian, Inc., a company that recruits participants for clinical trials, petitioned for the TCPA exemption, arguing that the calls at issue were not made for a commercial purpose, did not include any advertisements, and were otherwise not the type of intrusive telemarketing calls that the TCPA was intended to prohibit. The FCC agreed, holding that the "robocall" ban does not apply to calls that have no commercial purpose. The FCC TCPA ruling focuses on the non-commercial character of these calls and creates this narrow exception to the ban on "robocalls" to residential lines. We have written extensively about the TCPA, its exceptions, and how to maintain TCPA compliance (See Protect Yourself from TCPA Litigation). You can read the text of the FCC ruling here.
What does the FCC decision mean?
TCPA protects consumers from unwanted telemarketing calls
The FCC issues rulings on proposed exceptions to the TCPA from time to time (See Government Contractors Subject to TCPA Robocall Rules). This FCC TCPA ruling is in keeping with the agency's overall view of the TCPA's purpose: to protect consumers from unwanted telemarketing calls. The Acurian decision includes specific guidelines that must be met for the exception to apply: (1) no commercial purpose for the subject call; (2) no advertisement may be included in the call; (3) a clear opt-out for consumers must be presented during the call; and (4) no more than three such calls may be placed to a consumer within a consecutive 30-day period. Previously, the FCC has recognized the benefits of having non-commercial exceptions to both the consent to receive calls requirement and the ban on "robocalls." For example, where non-profit companies engage in non-commercial telephone solicitations. 47 C.F.R. § 64.1200(f)(14)(iii). In its ruling, the FCC explained that calls that are purely for research purposes or do not contain any commercial message are not considered telemarketing calls and, thus, not the type of unsolicited calls that Congress intended to ban with its enactment of the TCPA. As long as consumers have a clear mechanism to opt-out and do not receive an abundance of calls, the FCC believes that those consumers are adequately protected. (See FCC Asked to Clarify Scope of TCPA Opt-Out Requests).
What is the impact of this FCC ruling?
The Acurian ruling is encouraging in that the FCC remained consistent in its recognition of the fact that non-commercial phone calls, such as Acurian's clinical trial recruitment messages, are exempt from the strictures of the TCPA. Importantly, in this proceeding, the FCC only considered calls to residential phone lines and did not give any indication of its ruling's applicability to calls made to cellular phones. The ruling stresses that the non-commercial character of the call is critical in determining whether consent is required to make calls that include pre-recorded messages. While some platform providers offer products or services that attempt to get around the TCPA's consent requirements for "robocalls," the FCC specifically reiterated in this decision that those tactics will not work where the subject calls are commercial in nature.
The FCC's Acurian ruling broadens the non-commercial call exception to the TCPA. Notwithstanding this fact, businesses must remain vigilant in separating what is commercial from what is informational or non-commercial when calling or texting consumers. Robust TCPA compliance policies and experienced counsel will help those businesses stay on the right side of the law. Klein Moynihan Turco can help you draft or update TCPA compliance policies and procedures with the goal of avoiding time-consuming and costly litigation and/or investigation by the FCC.
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