The Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, was enacted by Congress in 1991 to stop the proliferation of unwanted robocalls to cellular phones and prohibits auto-dialed, prerecorded and artificial voice calls and text messages to wireless telephone numbers with limited exceptions. With its sweeping applicability and statutory damages of $500 per violation ($1,500 for willful violations), the TCPA has become a best friend to the plaintiffs’ bar, giving rise to countless consumer class actions across the United States. 

But what happens during a global health crisis when critical information about public safety needs to be communicated immediately?

On March 20, 2020, the Federal Communications Commission (FCC) answered that question by issuing a declaratory ruling that certain calls relating to the COVID-19 pandemic fit within the “emergency purposes” exception to the TCPA. To qualify for this exception, two requirements must be met:

1. The caller must be a hospital, a health care provider, a 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
2. The content of the call must be solely information, made necessary because of the COVID-19 outbreak and directly related to the imminent health or safety risk arising from COVID-19.

Clarifying that this is not an exhaustive list, the FCC offered the following examples of calls which do and do not qualify for the COVID-19 “emergency purposes” exception.

DO’s

• A call from a hospital providing vital and time-sensitive health and safety information that citizens welcome, expect and rely upon to make decisions to slow the spread of COVID-19.
• A call from or at the express direction of a health care provider designed to inform and update the public regarding measures to address the current pandemic.
• A call from a county official to inform citizens of shelter-in-place requirements, quarantines, medically-administered testing information or school closures.

DON’T’s

• A call advertising a commercial grocery delivery service.
• A call selling or promoting health insurance.
• A call selling or promoting cleaning services.
• A call selling or promoting home test kits.
• A call to collect a debt (even if the debt arises from COVID-19 related health care treatment).

The FCC further noted that it will aggressively enforce its rules against “scammers” using the health crisis as “an opportunity to prey upon consumers,” citing reports it has already received about “scam and hoax” text messages and automated calls offering free home testing kits and promoting bogus cures.

The takeaway here is that the FCC did not give telemarketers and advertisers a “free pass” to violate the TCPA. Rather, it identified a narrow “emergency purposes” exception to the TCPA specifically relating to the COVID-19 pandemic, which is determined by “the identity of the caller and the content of the call.”

To read the declaratory ruling, click here. If you have further questions, please contact your Taft attorney.

Please visit our COVID-19 Toolkit for all of Taft’s updates on the coronavirus.