Troutman Pepper

On January 15, in response to a petition from Acurian seeking clarification on the non-commercial purpose exemption, the FCC held that prerecorded calls to residential phone numbers seeking participants for FDA-mandated clinical pharmaceutical trials did not constitute “advertising” or “telemarketing” under the Telephone Consumer Protection Act (“TCPA”) because they “do not identify property, goods, or services offered for sale by Acurian.” Therefore, these types of calls do not require prior express written consent. However, the FCC made sure to note that under the new TRACED Act Order, Acurian cannot make more than one call to a given residential line within 30 days and must allow the recipient to opt out of future calls.

The FCC did not need to reach the question of whether the calls were commercial because the lack of advertising was sufficient to exempt them. It also reiterated that calls that offer a free good or service as part of an overall marketing campaign to sell a good or service still constitute commercial advertising, and other “dual purpose” calls are also suspect.

This ruling means that businesses that have been placing similar calls only to residential numbers that have given express written consent may be able to make those calls to a wider audience without running afoul of the TCPA. If a prerecorded call makes a free opportunity available, such as a clinical trial, that is not tied to any product offered for sale by the business, it may fall outside the restrictions on advertising or telemarketing, enabling it to be transmitted to a residential number without prior written consent. However, it will count toward the business’s one-call-per-thirty-days-per-number limit.

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