The FCC has issued a Declaratory Ruling assuring public health authorities that the COVID-19 pandemic, also referred to as the Coronavirus, constitutes an “emergency” under the Telephone Consumer Protection Act.
As recently discussed in our blog, the TCPA specifically excludes calls “made for emergency purposes.” 47 U.S.C. § 227(b)(1)(A). Calls made for emergency purposes are defined as “calls made necessary in any situation affecting the health and safety of consumers.” 47 C.F.R. § 64.1200(f)(4). These emergency calls do not require prior express consent of the called party. The FCC has made it clear that “the legislative history of the TCPA indicates a congressional intent to interpret the term ‘emergency’ broadly rather than narrowly.” In the Matter of the Tel. Consumer Prot. Act of 1991, 7 F.C.C. Rcd. 2736 (1992).
With the Declaratory Ruling, the FCC intends to “ensure that public health authorities can efficiently and effectively communicate vital health and safety information to the American people” without violating federal law.
Clarifying the scope of the exception, the FCC found that to determine whether a call or text message relating to the COVID-19 pandemic qualifies as made for an emergency purpose, two elements must be considered: (i) the identity of the caller; and (ii) the content of the call.
The FCC has held that the emergency exception is available only to a narrow set of entities that may be sending communications related to COVID-19: “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.” The FCC elaborated:
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.
The FCC has, therefore, adopted a very narrow interpretation of the TCPA’s Emergency Exception, which we believe differs from what existing case law had suggested would fall within the exception. Therefore, we strongly counsel businesses to proceed cautiously in relying on the Emergency Exception if they do not have explicit instruction from a healthcare provider or public health official to make calls or send the messages.
The FCC’s Declaratory Ruling indicates that calls or text messages containing advertising or telemarketing of services, or made to collect a debt, even if related to the Coronavirus, do not constitute calls or text messages made for an “emergency purpose” and will be subject to the TCPA prohibitions and requirements regarding previous consent of the recipient.
Finally, the FCC warned “unscrupulous” callers who are taking advantage of the current situation by sending scam and hoax text messages and automated calls, saying that the Commission will continue its “aggressive work to combat illegal robocalls.”
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