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FCC Confirms COVID-19 Pandemic Constitutes Emergency Under TCPA

Posted on: March 23rd, 2020

By: Matthew Foree

The Federal Communications Commission (“FCC”) has just issued a Declaratory Ruling confirming that the coronavirus pandemic constitutes an emergency under the Telephone Consumer Protection Act (“TCPA”). The Declaratory Ruling can be found here. Consequently, “hospitals, healthcare 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.”

The TCPA prohibits autodialed, pre-recorded, or artificial voice calls to wireless telephone numbers, with certain exceptions. The TCPA expressly exempts calls made for emergency purposes. The FCC’s rules define “emergency purposes” to mean “calls made necessary in any situation affecting the health and safety of consumers.” The exception is intended for “instances [that] pose significant risks to public health and safety, and [where] the use of prerecorded message calls could speed the dissemination of information regarding . . . potentially hazardous conditions to the public.”

The FCC recognized that a critical component of the nation’s efforts to address and contain the pandemic is the ability of healthcare and public safety organizations to communicate effectively with the public.  Therefore, it found that the current pandemic constitutes an imminent health risk to the public.  The FCC found that in determining whether a call relating to the pandemic qualifies as a call made for an emergency purpose, it looks to (1) the identity of the caller and (2) the content of the call. Under the first prong, “the caller must be from a hospital, or be a healthcare provider, state or local health official, or other government official as well as a person under the express direction a such an organization and acting on its behalf.” Under the second prong, “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 COFIC-19 outbreak.”

The FCC gave multiple examples of calls that would fall within the emergency exception. For example, “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.” The FCC also recognized that calls that contain advertising or telemarketing of services do not constitute calls for an emergency purpose. Furthermore, calls made to collect a debt, even if it arises from related healthcare treatment, are not made for an emergency purpose. Such calls still require the prior express consent of called party.

Finally, the FCC recognized that consumers have already received telemarketing and fraudulent robocalls related to the pandemic, including scam text messages and calls offering home testing kits and promoting bogus cures. The FCC stated that it would be vigilant in monitoring complaints about these calls and would not hesitate to enforce its rules when appropriate.

If you have any questions about the FCC’s Declaratory Ruling, or any obligations under the TCPA during this time, please do not hesitate to contact Matt Foree at [email protected].

Additional information: 

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues every day for the next week. We will discuss the impact of Coronavirus for companies in general, but also for business in insurance, healthcare, California specific issues, cybersecurity, and tort. Click here to register.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients. Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the Coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments. For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER: The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19. The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement. We can only give legal advice to clients. Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG. An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest. As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce educational content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such. We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.** 

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