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.

This Public Notice supplements the FCC’s March 20, 2020 Declaratory Ruling, in which it had confirmed that the pandemic constitutes an “emergency” under the TCPA and that consequently health care entities and government officials may communicate, through automated calls or text messages, information about COVID-19 as well as mitigation measures, provided that the call or text is solely informational and directly related to the imminent health or safety risk arising out of the pandemic.

Nevertheless, this safe harbor does not extend to automated calls or texts that contain advertising or telemarketing or that attempt to collect a debt—even if such debt arises from pandemic-related healthcare treatment. The Public Notice does not interpret “emergency purpose” to include these types of calls or texts, which are permissible with prior express written consent.