The Telephone Consumer Protection Act (TCPA) generally restricts making certain non-emergency calls to cellular phones and landlines, among other things, without the called party’s consent. However, the Federal Communications Commission (FCC) has created a number of exemptions on which business have come to rely. A new FCC Order significantly limits those exemptions.
The TCPA places different restrictions on making calls without the called-party’s consent, depending on the type of telephone line used. For instance, with respect to residential landlines, the TCPA prohibits initiating non-emergency calls “using an artificial or prerecorded voice” but permits calls to residential landlines using an automatic telephone dialing system (ATDS). With respect to cellular telephone numbers, the TCPA prohibits non-emergency calls using an ATDS or an artificial or prerecorded voice.
Through section 8 of the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (TRACED Act), enacted in 2019, Congress required the FCC to ensure that its TCPA exemptions had parameters regarding “(i) the classes of parties that may make such calls; (ii) the classes of parties that may be called; and (iii) the number of such calls that a calling party may make to a particular called party.” The FCC released a notice initiating this process in October 2020 and solicited comments.
Following the notice and comment period, the FCC issued an Order on December 30, 2020 which places significant limits on the exemptions with respect to residential landlines, as outlined below. These changes will come into force six months from the date of publication of the Office of Management and Budget’s approval of the rules in the Federal Register.
Changes to Residential Landline Exemptions
- Non-commercial, Non-Telemarketing and Tax-Exempt Nonprofit Calls
(a) Before: A caller, including any tax-exempt, nonprofit organization, could make (or cause its vendor(s) to make) any amount of prerecorded or artificial voice calls to a residential landline for non-commercial or non-telemarketing purposes (including for political purposes) under this exemption.
(b) After: A caller, including any tax-exempt, nonprofit organization, may make (or cause its vendor(s) to make) only three (3) prerecorded or artificial voice calls in a consecutive thirty (30) day period to residential landlines for non-commercial or non-telemarketing purposes.
Further, an opt-out mechanism is now required for those calls, meaning that the caller must provide a phone number which takes opt-out requests or a key-press tool that can be prompted during prerecorded or artificial calls.
- Healthcare / HIPAA Calls
(a) Before: A caller could make (or cause its vendor(s) to make) any amount of HIPAA-related calls delivering a healthcare message to residential landlines under this exemption.
(b) After: A caller may make (or cause its vendor(s) to make) only one (1) HIPAA-related call conveying a healthcare message per day, up to a maximum of three (3) artificial or prerecorded voice calls per week under this exemption.
Further, the same type of opt-out mechanism described above is required.
No Changes to Wireless Number Exemptions
As our readers may be aware, the FCC has carved-out exemptions for package delivery calls, financial institution calls, healthcare provider calls, and inmate-calling service calls made to wireless numbers using an ATDS or artificial / prerecorded voice. These exemptions stand.
The FCC determined that “no further restrictions [were] necessary” to harmonize these exemptions with the TRACED Act. As to calls made by financial institutions, for example, the FCC found existing conditions on the exemption sufficient, as the exemption only applies to calls made by financial institutions to their customers and is limited to no more than “three calls per event over a three-day period for each affected account.”
These new restrictions have significant implications for businesses in a wide-variety of industries, from tax-exempt nonprofits to political organizations to healthcare companies, as well as vendors making calls on their behalf. Although these new restrictions are not enforceable for six months, businesses should begin to think seriously about compliance now, particularly if they engage multiple outside vendors as part of their communications strategy. The reason for this is that the new limitations apply per “calling party” (i.e. caller) and “called party” (i.e. per person), meaning that a caller cannot call the same person (or cause the same person to be called) more than 3 times in 30 days or, in the case of HIPAA-related calls, more than 3 times per week. In other words, a business will likely run afoul of the limits if it has multiple agents who collectively call a person in excess of these limits. Accordingly, the best practice for businesses and their vendors is to make sure that they have sufficient internal and external controls to stay within the new limits.
As always, please reach out to use if you have any question regarding compliance with these new rules.
 47 U.S.C. § 227(b)(1)(B).
 Id. § 227(b)(1)(A)(iii).
 Id. § 227(b)(2)(I).
 Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02-278, Report & Order, FCC 20-186 (2020), ¶ 8.
 Id. ¶ 42.
 Id. ¶¶ 15, 28, 33.
 Id. ¶¶ 21, 23, 28, 29, 33, 34 & n. 77.
 Id. ¶ 38.
 Id. ¶ 40.
 Id. ¶ 43.
 Id. ¶ 45.