Coronavirus triggers “emergency” exception for TCPA in some cases

On March 20, the Consumer and Government Affairs Bureau (CGAB) of the Federal Communications Commission (FCC) declared that “the COVID-19 pandemic constitutes an ’emergency’ under the Consumer Protection Act by telephone (TCPA) and that, therefore, hospitals, health care providers, state and local health authorities, and other government officials may legally release information about the novel coronavirus along with mitigation measures without violating federal law“The declaratory ruling took effect immediately upon publication.

FCC rules provide a specific exemption for requirements for calls to wireless phones made for emergency purposes. As the CGAB’s declaratory decision explains: “The Board’s rules define ’emergency purposes’ as ‘appeals necessitated in any situation affecting the health and safety of consumers’. The exception “for emergency purposes” is intended for “cases [that] pose significant risks to public health and safety, and [where] the use of pre-recorded message calls could speed up the dissemination of information concerning . . . potentially dangerous conditions for the public.

With President Trump’s declaration of a national emergency and similar actions by states, the Commission noted that it had “clearly stated that robocalls to wireless numbers necessitated by incidents of imminent danger, including of “health risks” affecting health and safety, are carried out in an emergency purpose and do not require prior express consent to be lawful. Unsurprisingly, the Commission concluded that “the current pandemic poses an imminent risk to the health of the public”.

However, as previously reported by TCPAWorld, the declaratory ruling established two criteria for “determining whether a call relating to the COVID-19 pandemic is considered a call made for emergency purposes.”

“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 informational only, necessitated by the COVID-19 outbreak, and directly related to the imminent health or safety risk arising from the COVID-19 outbreak.

The declaratory decision provided examples of eligible calls as follows: “Thus, a call from a hospital that provides vital and urgent health and safety information that citizens welcome, expect and rely on to make decisions to slow the spread of COVID -19 the disease would fall squarely under an emergency objective.An information call designed to inform and update the public regarding measures to combat the current pandemic, initiated in the name and under the express direction of a health care provider, would be initiated in a situation that “affects[s] health and safety of consumers” and would therefore be exempt. In turn, a call from a county official to notify citizens of shelter-in-place requirements, quarantines, medically administered testing information, or national emergency-needed school closures would be made to emergency purposes, as these measures are designed to prevent the spread of disease. »

However, the CGAB cautioned that: “Calls containing advertising or telemarketing of services do not constitute calls made for emergency purposes (for example, advertising a commercial grocery delivery service, or selling or promoting health insurance, cleaning services or home test kits) Calls made to collect a debt, even if that debt arises from related health care treatment, are not not made for emergency purposes, as such calls are not urgent, do not affect the health and safety of consumers and are not directly related to an imminent health or safety risk. claims, advertising or telemarketing require the prior express consent of the called party.

The ruling also clarified that she was aware of scam robocalls seeking to exploit concerns about the virus. CGAB said: “Unscrupulous callers should not view the relief we provide here as a retreat from our aggressive work to combat illegal robocalls. As the COVID-19 pandemic continues to affect the United States, phone scammers have seized the opportunity to prey on consumers. We are aware that some consumers have already received scam telemarketing and robocalls related to the pandemic. For example, we have received reports of scam and prank text messages and robocalls offering free home test kits, promoting bogus cures and exploiting virus fears. We will be vigilant in following up on complaints about these calls and will not hesitate to apply our rules if necessary. »