Telemarketing: HIPAA Can Reverse the Charges Under the TCPA

by BakerHostetler

The Telephone Consumer Protection Act (TCPA) generally limits automatically dialed and prerecorded telemarketing calls to wireless and residential phones. In the past, healthcare providers and other "advertisers" could rely on an established business relationship (such as a previous purchase) to circumvent the need to obtain a consumer's written consent to receive certain telemarketing or advertising calls. Beginning October 16, the "established business relationship" exemption for prerecorded telemarketing calls will be eliminated from the TCPA. However, the good news for healthcare providers is that the Federal Communications Commission (FCC) retained the exempt organization exception and also adopted an exemption in this rule for certain automatically dialed and prerecorded healthcare-related calls by or on behalf of a covered entity or its business associates regulated under HIPAA.

The FCC's rules, published on June 11, 2012, for auto-dialed and prerecorded calls made to wireless numbers or to a landline in certain limited circumstances (e.g., call to a patient room of a hospital or other healthcare facility) (Restricted Lines) will now allow such calls if (1) the caller has the express prior consent of the recipient of the call (including prior verbal consent); and (2) the call does not introduce an advertisement and/or constitute telemarketing.

If the call, however, introduces an advertisement and/or constitutes telemarketing, then providers and other advertisers generally will be required to obtain a consumer's prior written express consent for such autodialed or prerecorded calls to a Restricted Line. However, if a telemarketing call to a Restricted Line delivers a "health care" message by or on behalf of a HIPAA-covered entity or its business associate, the new HIPAA exception will apply and the recipient's written consent will not be required. Prior verbal consent, however, will be required. Calls made by or on behalf of a tax-exempt, nonprofit organization likewise generally will require only prior express consent rather than prior written consent. The distinction between telemarketing and nontelemarketing calls can be difficult to discern in some cases. Providers will need to examine their messages carefully and ensure that they know what types of communications they are making in order to obtain the correct consent for calls to a Restricted Line.

The FCC's rules likewise require a recipient's prior written consent for prerecorded calls made to residential phone lines. However, no prior consent is required if the call (1) is made for emergency purposes; (2) is not made for a commercial purpose; (3) is made for a commercial purpose but does not include or introduce an advertisement or constitute telemarketing; (4) is made by or on behalf of a tax-exempt nonprofit organization; or (5) delivers a ''health care'' message made by, or on behalf of, a "covered entity" or its ''business associate."

However, providers should be aware that in instances where a prerecorded healthcare-related call's primary motivation appears to be sending a telephone solicitation or unsolicited advertisement rather than a true healthcare-related message, or in those cases where the call is not covered by HIPAA, as determined by the U.S. Department of Health and Human Services, the restrictions generally applicable under the TCPA will apply "as the facts warrant," according to the FCC's commentary.

The FCC's newly adopted HIPAA exception also exempts prerecorded healthcare-related calls made by, or on behalf of, a ''covered entity'' or its ''business associate," from the FCC's other requirements, such as identification, time-of-day, opt-out and abandoned call requirements. This rule change largely harmonizes the FCC's position with that of the Federal Trade Commission's (FTC) telemarketing sales rule (TSR).

The FCC also implemented a rule that requires telemarketers to implement an automated, interactive opt-out mechanism for autodialed or prerecorded telemarketing calls to wireless numbers and for prerecorded telemarketing calls to residential lines, which would allow a consumer to opt out of receiving additional calls immediately during a telemarketing robocall. This rule change also largely harmonizes the FCC's position with that of the FTC's TSR.

When required, a consumer's written consent must be signed or electronically signed and be sufficient to show that the consumer (1) received ''clear and conspicuous disclosure'' of the consequences of consenting (i.e., that the consumer will receive future calls that deliver prerecorded messages by or on behalf of the recipient of the consent); and (2) having received this information, agrees unambiguously to receive such calls at a telephone number the consumer designated. In addition, the written agreement must be obtained ''without requiring, directly or indirectly, that the agreement be executed as a condition of purchasing any good or service.'' Although prior express consent can be obtained either orally or in writing, the FCC provides little guidance as to how to ensure such consent is documented, leaving it to the caller to determine whether to rely on a verbal consent in complying with its requirements under the rules.

The TCPA has seen an explosive growth in class action litigation over the past few years. This growth has been largely driven by plaintiffs eager to receive the statutory damages of between $500 and $1,500 per violation, without need to prove actual damages. There is no class action cap on the statutory damages under the TCPA. Hence, providers should carefully examine their telemessaging practices.

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.

© BakerHostetler | Attorney Advertising

Written by:


BakerHostetler on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.