On March 20, the FCC released a declaratory ruling clarifying that certain calls and text messages related to COVID-19 satisfy the “emergency purposes” exception to the Telephone Consumer Protection Act’s (“TCPA”) prohibition against automated and prerecorded communications to wireless numbers without the prior express consent of the called party.

• The TCPA contains an exception to its consent requirements for calls made for “emergency purposes.” In turn, the FCC’s rules define “emergency purposes” as “calls made necessary in any situation affecting the health and safety of consumers.”
• The FCC’s declaratory ruling acknowledges that the COVID-19 pandemic qualifies as “an imminent health risk to the public,” and accordingly, certain automated calls and texts related to COVID-19 health and safety measures satisfy the emergency purposes exception.
• To qualify under the FCC’s exception, the call must satisfy a two-part test, which examines both the caller and content of the call: “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 provided examples of exempted calls, including “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” and “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.”
• Calls that include “advertising or telemarketing of services” (such as “advertising a commercial grocery delivery service, or selling or promoting health insurance, cleaning services, or home test kits”) and “calls made to collect debt, even if such debt arises from related health care treatment” for COVID-19 are not exempt.
• The FCC pledged to remain vigilant in monitoring complaints about telemarketing and fraudulent robocalls related to the pandemic.
• While this ruling provides relief to certain identified callers, its restrictive language creates some uncertainty for other callers who are not named, such as employers outside the healthcare sector who contact employees regarding measures to limit COVID-19 exposure.

Read the FCC’s declaratory ruling, In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02-278 (2020), here.