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.

In 2012, the FCC adopted an exemption for calls or texts “that deliver[] a ‘health care’ message made by, or on behalf of, a ‘covered entity’ or its ‘business associate,’ as those terms are defined in the HIPAA Privacy Rule.” 47 C.F.R. § 64.1200(a)(2). Instead of “prior express written consent,” these healthcare calls and text messages only require the recipient’s “prior express consent” when delivered to a cell phone number and when they satisfy other requirements. When delivered to a residential land line, such calls are exempted by the 2012 ruling from any form of prior express consent. In 2015, the FCC created an additional exemption for a subset of calls or texts to cellphones that are for certain specified “exigent” healthcare purposes and where the call or text is not charged to the recipient. These calls or texts are exempt from any prior-consent requirement, but the FCC explicitly limited the 2015 exemption to eight specific categories of healthcare messages, and the ruling was further subject to restrictions that these calls or texts could not include “telemarketing, solicitation, or advertising content” or be made for “accounting, billing, debt-collection, or other financial” purposes, as well as other restrictions, including restrictions on the duration of each call and the number of such calls that could be made by a caller to any particular patient. These two regulatory exemptions are in addition to the TCPA’s statutory exception from the prior-express-consent requirement for calls made for “emergency purposes.” See 47 U.S.C. § 227(b)(1)(A)-(B); 47 C.F.R. 64.1200(f)(4) (defining “emergency purposes” calls as “calls made necessary in any situation affecting the health and safety of consumers.”).

In 2015, Anthem, Inc., a health benefit company, petitioned the FCC for two rulings. First, Anthem asked the FCC to rule that healthcare plans and providers should be exempt from the need to obtain prior express consent before making health-care-related calls “so long as [the callers] allow consumers to opt out after the fact.” Second, Anthem asked the FCC to rule that certain “nonemergency” but nevertheless “urgent” health-care-related calls made by healthcare plans and providers and “welcomed by customers” should be entirely exempt from any consent requirement. Anthem specifically identified “case management calls, preventative medicine calls, . . . calls regarding the use and maintenance of medical benefits,” and texts of the same nature as the types of communications it urged should be exempt. The Bureau rejected both requests.

In its declaratory ruling of June 25, 2020, the Bureau reiterated that the FCC has created specific exemptions for certain types of calls but that there is no “broad exemption for health-care-related calls.” The Bureau noted, for example, that the 2015 exemption is not a “general exception to the prior-express-consent requirement,” but rather, it is a “limited exemption … when [the calls] are, among other things, free to the end user.” As a preliminary matter, the FCC noted that the petitioner “has not argued it could satisfy [these] minimal factual requirements.”

While the FCC has frequently recognized that consent can be implied from circumstances where consumers “knowingly release their phone numbers for a particular purpose” prior to the calls or texts in question, the Bureau was unwilling to apply that logic to conclude that consent could be implied from the preexisting relationship between a consumer and his or her healthcare provider or healthcare plan, coupled with the consumer’s failure to opt out of the calls. The Bureau noted that the existence of a “relationship” between the caller and the consumer by itself neither constitutes prior express consent to receive automated calls nor creates an exemption to the consent requirement. Further, the Bureau noted that the TCPA requires “prior express consent before making calls to the consumer’s wireless phone number,” and the consumer’s failure to opt out after receiving the call does not constitute consent.

Turning to Anthem’s second request, the Bureau noted that while the petitioner claimed that calls about case management, preventive medicine and medical benefits are “urgent,” the FCC has never adopted an “urgent circumstances” exemption and declined to do so here. The Bureau expressed skepticism that these calls would rise to the level of calls “made for an emergency purpose” because they “do not appear to be made necessary by incidents of imminent danger including health risks affecting health and safety.”

Lastly, the Bureau turned the table on Anthem by remarking that to the extent that these types of calls are “welcomed by” and “popular with consumers,” as Anthem asserted, then “consumers should be willing to give their prior express consent for them.”

In the end, the Bureau declined an opportunity to relax the burdens that the TCPA imposes on healthcare providers and health plans attempting to communicate with their patients and members, but the ruling does not appear to make a change in the law. Health plans and providers must continue to comply with the prior-express-consent requirement or come within either the statutory Emergency Purposes exception or the FCC’s 2012 or 2015 regulatory exemptions for certain types of healthcare calls. This declaratory ruling does not change the scope of those existing exemptions. Instead, it serves as a reminder that the FCC appears reluctant to expand existing TCPA exemptions and that health plans, healthcare providers and other callers should engage in a rigorous fact-specific analysis to determine whether a planned calling campaign requires prior express consent from the called parties, and if so, the type of consent required.