Reacting quickly to a joint request by the U.S. Department of Health and Human Services (HHS) and the Centers for Medicare & Medicaid Services (CMS) (collectively, the Health Agencies) last Thursday, the FCC released a Public Notice on May 3, 2022, inviting comments about how it should clarify “that certain automated calls and text messages or prerecorded voice calls relating to enrollment in state Medicaid and other governmental health coverage programs are permissible under the Telephone Consumer Protection Act (TCPA).” Recognizing the time-sensitive nature of the Health Agencies’ request, the FCC established a short cycle for public comment – comments are due in 14 days on May 17, 2022, and any reply comments are due on May 24, 2022.
Earlier this month, the U.S. District Court for the Southern District of Ohio clarified that a TCPA defendant need not maintain an internal do-not-call list and policies in order to invoke the “established business relationship” defense for telemarketing calls to numbers on the national DNC registry.
By way of background, the TCPA prohibits businesses from making “telephone solicitations” to phone numbers on the national DNC registry. 47 U.S.C. § 227(c); 47 C.F.R. § 64.1200(c). However, telemarketing calls and messages can be sent to such numbers where the caller has an “established business relationship” with the recipient. 47 U.S.C. § 227(a)(4); 47 C.F.R. § 64.1200(f)(15)(ii). The FCC has defined an “established business relationship” (“EBR”) as a “relationship formed by a voluntary two-way communication” regarding a telephone subscriber’s recent purchase of or inquiry about a product sold by the caller. 47 C.F.R. § 64.1200(f)(5). A subscriber can terminate the EBR at any moment by making a clear and specific request for the calls and/or messages to stop. Id. § 64.1200(f)(5)(i). Separately, 47 C.F.R. § 64.1200(d) requires entities who place telemarketing calls to keep an internal list of individuals who have requested not to receive calls and to maintain policies to ensure that the list is honored.