Now more than ever businesses need to be able to quickly and efficiently communicate with clients and customers about issues related to the COVID-19 pandemic. However, as many businesses know, the Telephone Consumer Protection Act (“TCPA”) is often an obstacle to quick and efficient communication. A new ruling from the FCC clarifies that certain calls regarding COVID-19 are exempt from TCPA liability.
The TCPA prohibits, among other things, calling or texting customers’ cell phones using an automatic telephone dialing system (“ATDS”), artificial voice or prerecorded voice (commonly referred to as “robocalls”) unless:
the call is made for “emergency purposes,” meaning that the call is “necessary in any situation affecting the health and safety of consumers;” or
the called party has given the business prior express consent to call their cell phone.
Callers who fail to comply with this rule are subject to a statutory fine of $500 to $1,500 per call or text. And, because the TCPA imposes no aggregate limit on damages, the risk of non-compliance is significant, particularly when TCPA cases are filed as putative class actions, as many are.
The scope of the “emergency purposes” exception has not been litigated extensively. Those court opinions and FCC orders that do address the issue have narrowly construed the exception. For instance, text messages and calls asking customers to return contaminated food products or informing parents of school closings and school safety concerns fall within the emergency purposes exception; however, calls regarding healthcare account balances or other general school activities do not. Further, courts have split on the issue of whether certain healthcare-related calls, such as prescription refill reminders, fall within the emergency purposes exception.
The March 20, 2020 FCC Ruling
Recognizing that further guidance on the “emergency purposes” exception was needed in the face of the ongoing COVID-19 pandemic, the FCC sua sponte issued a declaratory ruling on Friday, March 20, 2020.
While the FCC explicitly recognized that COVID-19 poses the type of imminent health risk to which the “emergency purposes” exception was intended to apply, it took a limited view of the type of calls to which the exception applies:
In determining whether a call relating to the COVID-19 pandemic qualifies as a call made for an emergency purpose, we look to the identity of 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.
Further, the FCC ruled that calls advertising services which are extremely useful to the millions of consumers currently sheltering in place—such as those advertising “commercial grocery delivery service[s]”—do not fall within the “emergency purposes” exception. Neither do “calls made to collect debt, even if such debt arises from [COVID-19] related health care treatment.”
Whether courts will construe this new Declaratory Ruling as binding and thereby limit the definition of emergency COVID-19 related calls as narrowly as the FCC is an issue which will be litigated extensively in the near future. In the meantime, healthcare providers, government officials and those acting on their behalf can take solace in knowing that their COVID-19 related communications likely fall within the “emergency purpose” exception. However, as a best practice, non-governmental entities outside the healthcare industry should confirm that they have the appropriate consent from customers prior to calling or texting them about COVID-19 related issues and keep procedures in place for allowing customers to opt-out from such communications.
 Prior express consent may be inferred when the customer voluntarily provides his or her cell phone number in connection with a business transaction and the call concerns that transaction. However, written consent is required for calls to cell phones that are not purely transactional in nature, i.e., calls that also advertise goods or services. Id. § 64.1200(a)(2).
See Brooks v. Kroger Co., No. 19-00106, 2019 WL 3778675, at *3 (S.D. Cal. Aug. 12, 2019) (text messages asking customers to return ground beef that may have been contaminated with salmonella were sent for an emergency purpose); ACA Int’l v. FCC, 885 F.3d 687, 714 (D.C. Cir. 2018) (calls from healthcare providers concerning “[a]dvertisements, solicitations, and post-treatment financial communications are not the sort of ‘emergencies’ that would justify suspending the TCPA’s consent regime”); In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 31 FCC Rcd. 9054, 9061 ¶ 17, 9063 ¶¶ 21–22 (2016) (emergency purposes exception includes calls regarding school closings due to weather, “incidents of threats and/or imminent danger to the school due to fire, dangerous persons, health risks (e.g., toxic spills), and unexcused absences” but does not include calls regarding parent-teacher conferences or general school activities).
Compare Roberts v. Medco Health Solutions, Inc., No. 15-1368, 2016 WL 3997071, at *3 (E.D. Mo. July 26, 2016) (prescription reminder calls are sent for “emergency purposes”) and Lindenbaum v. CVS Health Corp., No. 17-1863, 2018 WL 501307 (N.D. Ohio Jan. 22, 2018) (same) withSmith v. Rite Aid Corp., No. 17-6044, 2018 WL 5828693 (W.D.N.Y. Nov. 7, 2018) (refusing to rule that prescription notice calls, as a matter of law, fall within the “emergency purposes” exception) and Kolinek v. Walgreens Co., No. 13-4806, dkt. no. 66, at 2 (N.D. Ill. Aug. 11, 2014) (same).
 The FCC is the administrative body charged with promulgating rules under the TCPA.
Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Declaratory Ruling, DA 20-318 ¶ 7 (March 20, 2020) (emphasis added).