Some Clinical Trial Calls Now Eligible for the FCC’s Revised TCPA Exemption

The TRACED Act’s December 30, 2020 deadline was not the end of the FCC’s recent series of actions to bring more clarity to certain forms of TCPA exemptions. Most recently, on January 15, 2021, the FCC issued a Declaratory Ruling “clarify[ing] that a call to a residential telephone line seeking an individual’s participation in a clinical pharmaceutical trial is not subject to the TCPA’s restrictions on prerecorded calls.” Instead, the FCC stated that these calls are eligible for exemption from the TCPA’s prior express written consent requirement as other calls to a residence that do not constitute telemarketing.

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New Year, New Rules: FCC Modifies Existing TCPA Exemptions, Adopts New “Call Blocking” Requirements, and Clarifies TCPA Application Over Soundboard Technology

Some welcome the New Year with new goals and new plans while others – the FCC, in particular, welcomes the New Year by wrapping up TCPA rulemakings and issuing other rulings. As expected, a number of TRACED Act items were included in orders issued in late December 2020. As we previewed, the FCC amended nine existing TCPA exemptions, imposing additional restrictions on pre-recorded/artificial voice calls placed to residential lines even for informational calling, and adopted new redress requirements on and safe harbor protections for carriers engaging in network-based call blocking. The FCC also denied two petitions for declaratory rulings, clarifying that “soundboard callers use a prerecorded voice to deliver a message” and that as a result, these calls made using soundboards are subject to TCPA restrictions. In light of these changes, we encourage business callers to carefully assess how they affect any existing calling protocols and compliance practices.

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FCC Proposed Rulemaking Presents an Opportunity to Reshape Some Existing TCPA Exemptions

Over the years, one of the biggest challenges many businesses face when assessing TCPA risks posed by a new calling or texting campaign has been determining whether the proposed use case can defensibly rely on one of the exemptions adopted by the Federal Communications Commission (FCC). That is because the FCC has repeatedly cautioned that any exemptions it adopts apply only to the specific set of facts considered by the agency. Sometimes the jigsaw puzzle pieces align, but other times they do not perfectly fit together, making exemptions less useful than they might otherwise be.

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The FCC Clarifies that Certain Communications to COVID-19 Patients Fall with TCPA’s “Emergency Purposes” Safe Harbor

In a Public Notice issued July 28, 2020, the FCC confirmed that the TCPA’s safe harbor for calls or text messages made for “emergency purposes” applies to calls and text messages made by or on behalf of health care entities to communicate with individuals who have tested positive for COVID-19 to provide them with information regarding donating their plasma after recovery. As a result, in the FCC’s view, such calls or text messages during the ongoing pandemic do not require prior express consent to be lawful. Continue reading   »

FCC Affirms that Health Plans and Providers Cannot Offer Post-Call Opt-Out in Lieu of “Prior Express Consent”

The FCC’s Consumer and Governmental Affairs Bureau last week issued a declaratory ruling resolving a long-pending Petition on the question of whether certain healthcare-related calls, given their significance and value for consumers, should be entirely exempted from the TCPA’s prior express consent requirement, or at least exempted as long as consumers are allowed to opt out of the calls. The Bureau declined the petitioner’s invitation to create new healthcare exemptions or expand the scope of exemptions already in place for certain types of health-care-related calls.

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FCC Issues Ruling Applying TCPA’s “Emergency Purposes Exception” To Calls Addressing Health and Safety Risks Arising Out Of COVID-19 Pandemic

Acknowledging that “effective communications with the American public” is “a critical component” to efforts to slow the spread of the coronavirus, the Federal Communications Commission (FCC) released on its own motion, a declaratory ruling on March 20, 2020, addressing the applicability of the “emergency purposes” exception to the TCPA’s prohibition against making automated and prerecorded calls without prior express consent. This declaratory ruling is meant to provide “hospitals, health care providers, state and local health officials, and other government officials” peace of mind when sending important COVID-19 information through automated calls or texts.

As readers of the blog are well aware, the TCPA contains an exception to its consent requirements for calls made for “emergency purposes.” 47 U.S.C. §§ 227(b)(1)(A)-(B). The FCC’s rules define “emergency purposes” to mean “calls made necessary in any situation affecting the health and safety of consumers.” 47 C.F.R. § 64.1200(f)(4). The FCC’s declaratory ruling officially acknowledges the undeniable point that the COVID-19 pandemic constitutes an “emergency” under the TCPA. Earlier this month, on March 13, 2020, the White House declared a national emergency in light of the COVID-19 outbreak in the United States. As of March 20, 2020, all fifty states and the District of Columbia had declared states of emergency, which have led to many cities closing schools, workplaces, parks, restaurants, and houses of worship. Public safety organizations and institutions providing healthcare services, in particular, are changing modes of operation and means of handling some public-facing tasks. For example, many health care clinics have broadened their telemedicine programs or have begun conducting new patient intake “virtually” to triage patients with flu-like symptoms. These changes need to be communicated to existing and prospective patients in a timely manner on a large scale.

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Seven Robocall-Related Bills Examined at the House Energy and Commerce Committee Hearing

The House Energy and Commerce Committee held a hearing entitled “Legislating to Stop the Onslaught of Annoying Robocalls” on April 30, 2019, that focused on seven bills pending before the Committee. While lawmakers and witnesses generally agreed that illegal and abusive robocalls are a problem, the fix or immediate solution in the form of new legislation was less clear.

Chairman Mike Doyle (D-PA) opened the hearing by summarizing the current state of pervasive robocalls and calling for voice service providers to make available call-blocking services to all customers free of charge. Rep. Greg Walden (R-OR) shared this sentiment, emphasizing the need for a bipartisan solution with wide support. As Walden observed, robocalling is a topic that comes up at every single town hall meeting held in recent months. Several bill sponsors made opening statements regarding their respective bills, which we summarize briefly below. Continue reading   »

One Court Declines to Rule that Pharmacy Prescription Calls are Per Se Protected by the Emergency Purposes Exception, Rejecting Cases Holding Otherwise

Last week, in Smith v. Rite Aid Corporation, 2018 WL 5828693 (W.D.N.Y. Nov. 7, 2018), a court rejected the argument – supported by previous cases – that pharmacy prescription reminder calls categorically come within the TCPA’s statutory emergency purposes exception. This decision creates uncertainty for all pharmacies and may chill their ability to provide important health care notifications to their patients. Continue reading   »

Comments Filed in Reassigned Numbers and Post-ACA International Proceedings

Two important TCPA proceedings are underway at the FCC. The first proceeding addresses the potential creation of a reassigned number database and the second proceeding involves a host of key issues in the wake of the D.C. Circuit ruling in ACA International v. Federal Communications Commission, No. 15-1211 (D.C. Cir. March. 16, 2018), including reassigned number liability, revocation of consent and the definition of an “automatic telephone dialing system.” Cf. 47 U.S. Code § 227(a)(1). Continue reading   »

Second Circuit Again Rejects TCPA Claims Over Health Care Calls

The Second Circuit yesterday delivered a ruling that was widely expected but also widely welcomed by health care providers struggling to provide patients with important reminders while avoiding massive TCPA class action liabilities. Zani v. Rite Aid Hdqtrs. Corp., 17-1230-cv (Feb. 21, 2018), affirmed summary judgment in favor of Rite Aid over its prerecorded flu shot reminder calls. We wrote about the lower court decision in Zani here. The Second Circuit’s ruling came as no surprise because the same court last month ruled for another health care provider in rejecting TCPA claims over flu shot reminder texts. We analyzed that case, Latner v. Mount Sinai Health System, Inc., 879 F.3d 52 (2d Cir. 2018), here. Indeed, finding that the issues in Zani were “virtually identical” to those in Latner (Opinion, p. 5), the Second Circuit delivered its latest ruling in a non-precedential summary order. Continue reading   »