In 1991, the Telephone Consumer Protection Act ("TCPA") (47 U.S.C. § 227) was enacted to address unwanted telephone calls and faxes for marketing. The Federal Communications Commission ("FCC") Enforcement Bureau expanded the provisions of TCPA to include limits for the use of automated text messages. Specifically, the FCC has stated that the restrictions on making "autodialed" calls to cell phones include both voice calls and texts. As such, automated calls and text messages to cell phones are subject to the requirements of TCPA. Generally, as explained further below, entities can send automated text messages without the prior express, written consent of the recipient only in emergency circumstances, or if such text messages are directly related to urgent and crucial matters of health care treatment for an individual.
The TCPA prohibits autodialed calls or text messages, as well as prerecorded calls, unless the caller has previously obtained the prior express consent of the recipient, or unless the calls or text messages are made for emergency purposes or subject to an FCC exemption. In most cases, "express" consent must be written. Callers have the burden of proving that they obtained express, written consent, and recipients must be able to revoke consent.
First, the TCPA requirements include an exception to express consent for "exigent" messages related to health care for an individual, specifically with regard to "treatment" for the individual. Any messages relying on this exception must be "exigent" for treatment purposes; in other words, the messages must be urgent and crucial, must have a health care treatment purpose, and must comply with HIPAA (e.g., must not be of such a sensitive or personal nature that it would violate an individual's privacy if another person received the message). Communications regarding billing, for example, are not considered "exigent" by the FCC. These messages must be "free-to-end-user;" there should be no charge to the recipient; the caller must honor opt-out requests immediately, and the caller may initiate only one message per day or three per week.
Second, prior express, written consent is not required under TCPA for messages related to "emergency purposes." Calls or messages for "emergency purposes," under TCPA, are those "necessary in any situation affecting the health and safety of consumers."
On March 20, 2020, FCC issued a Declaratory Ruling regarding the COVID-19 pandemic, noting that it constitutes an "emergency" under the TCPA. In the Declaratory Ruling, the FCC stated that, for purposes of messages for "emergency purposes" related to COVID-19, two elements must particularly be considered: the identity of the caller; and the content of the call or message. Specifically, according to the FCC:
- First, the caller must be from a hospital, or be a 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. Second, 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.
The FCC also gave several important examples of communications permitted and not permitted under the exception for COVID-19:
- A call 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 within an emergency purpose. An informational call 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 thus be exempt. In turn, 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.
- In contrast, calls that contain advertising or telemarketing of services do not constitute calls made for an "emergency purpose" (e.g., advertising a commercial grocery delivery service, or selling or promoting health insurance, cleaning services, or home test kits). 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. Such debt collection, advertising, or telemarketing automated calls require the prior express consent of the called party.
As such, the FCC, in this Declaratory Ruling, has arguably limited the emergency exception for communications to specific circumstances related to health care and public health. As a result, communications to individuals without express written consent under the TCPA should be limited to those specifically related to their treatment by health care providers, and those related specifically to COVID-19 issues identified by health care providers and for public health purposes.
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