FCC Affirms Application of Emergency Purposes Exception to COVID-19 Plasma Donation Calls and Texts

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On July 28, 2020, the Federal Communications Commission (FCC) issued a public notice clarifying its prior guidance regarding the types of COVID-19-related communications that fall within the “emergency purposes” exception to the Telephone Consumer Protection Act (TCPA). In its Declaratory Ruling of March 20, 2020, the FCC confirmed that the COVID-19 pandemic constitutes an “emergency” under the TCPA, and that calls and texts do not require prior express consent if (i) the caller is a hospital, healthcare provider, state or local health official, or other government official, or a person under the express direction of such an organization and acting on its behalf; and (ii) the content of the call is 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.

In its most recent notice, the FCC clarified that calls and text messages (i) made by or on behalf of commercial labs, health insurers, physicians and pharmacies (healthcare entities) (ii) that communicate with individuals who have tested positive for COVID-19 (pursuant to guidance from federal, state or local government officials) (iii) to provide them with information regarding donating their plasma after recovering fall within the emergency purposes exception. Therefore, such plasma donation calls and texts are exempted from the prior express consent requirements of the TCPA. In issuing its order, the FCC expressed that these calls “are critical to inform their recipients of the need for them to participate in an effort to mitigate the devastating effects of COVID-19.”

The FCC reiterated that automated calls or texts that contain advertising or telemarketing of services, or that attempt to collect a debt (even if related to healthcare treatment), do not fall under the emergency purposes exception, as these types of calls do not affect the health and safety of consumers.

Find the public notice here.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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