The Telephone Consumer Protection Act (the TCPA) restricts telemarketing and the use of automated telephone equipment for phone calls, faxes, and text messages. In an effort to ease restrictions in light of the COVID-19 outbreak, the Federal Communications Commission (FCC) has issued guidance clarifying that informational calls that are directly related to the imminent health or safety risk arising out of the COVID-19 outbreak and made by certain types of callers are exempt from the TCPA requirements under the “emergency purposes exception.”

The FCC’s guidance, issued as a Declaratory Ruling on March 20, 2020 (the “Ruling”), explains that the FCC has determined that the COVID-19 outbreak constitutes “an imminent health risk to the public” under the “emergency purposes” exception described above. The Ruling further provides criteria for determining whether a call relating to the COVID-19 pandemic qualifies for the exception:

  • The caller must be: (1) calling from a hospital, (2) a health care provider, (3) a state or local health official, or other government official, or (4) a person acting on behalf of such an organization and on its express direction; and
  • The content of the call must be solely informational, made necessary as a result of the COVID-19 outbreak, and directly related to the imminent health or safety risk arising out of the COVID-19 outbreak.

With businesses of all types – and especially health care providers – dealing with unprecedented changes to their business models, the TCPA and other privacy laws include exceptions for certain disclosures and communications. The FCC’s confirmation that the COVID-19 outbreak qualifies for such an exception is not surprising but should provide comfort to health care providers who are trying to communicate with patients about necessary appointment changes, office closings, and safety precautions. Health care providers should still be thoughtful in their communications to ensure that they remain purely informational and should watch for additional guidance from the FCC when the pandemic wanes and such communications are no longer necessary.