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COVID-19 Texts from Health Care Providers Legal Under TCPA, FCC Confirms

Late Friday, the FCC released a Declaratory Ruling clarifying that the COVID-19 pandemic qualifies as an “emergency” under the TCPA’s emergency purposes exception. That means health care providers don’t need the prior express consent of the called parties, as they ordinarily would. The TCPA prohibits all calls and texts made by an automatic telephone dialing system unless those calls and texts are made with the prior express consent of the called party or are made for an emergency purpose. The FCC clarified that the current COVID-19 pandemic constitutes the kind of imminent health risk to the public the emergency purposes exception is meant to address.

In order to take advantage of the exception, the caller — or sender of a text message — “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.” The content of the message must be solely informational and directly related to the imminent health or safety risk arising out of the COVID-19 outbreak. The messages can include informational calls or texts that “inform and update the public regarding measures to address the current pandemic made on behalf of, and at the express direction of, a health care provider.” The FCC found that these messages are time-sensitive communications that citizens generally welcome.

The FCC also noted that the exception does not apply to any communications that include marketing — even if it is COVID-19 related. Thus, texts selling face masks, offering grocery delivery, health insurance, or home test kits, for example, are still prohibited. Communications to collect medical debt accumulated as a result of the pandemic are likewise not permitted without prior express consent, because they are not directly related to an imminent health or safety risk. Finally, the FCC urged consumers to be vigilant of fraudulent robocalls and scams offering free home testing kits, promoting bogus cures, and preying on virus-related fears. Such scammers are, of course, not covered by the emergency purposes exception, and the Commission will enforce its rules against bad actors where appropriate.

 

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Authors

Russell H. Fox is a wireless communications attorney at Mintz. He guides clients through federal legislative, regulatory, and transactional matters. Russell also participates in FCC proceedings, negotiates spectrum agreements, and represents clients in spectrum auctions.

Elana R. Safner

Associate

Elana R. Safner is an attorney who advises Mintz clients on public policy, regulatory issues, and disputes affecting the communications sector. Elana also handles privacy and cybersecurity matters. She has CIPP certification from the International Association of Privacy Professionals.