Header graphic for print
Focus on Regulation

FCC Confirms that Certain COVID-19 Communications Fall Within the TCPA’s “Emergency Purposes” Exception

Health care providers and government officials have more clarity regarding the ability to place certain calls and texts about the novel coronavirus, thanks to recent action by the Federal Communications Commission (FCC).

On March 20, 2020, the FCC released a Declaratory Ruling confirming that the pandemic caused by the novel coronavirus qualifies as an emergency under the Telephone Consumer Protection Act (TCPA), after President Trump pronounced the COVID-19 outbreak a national emergency. As a result, hospitals, health care providers, health officials, and other government officials may use automated calls and text messages to communicate information about COVID-19 when “necessary to protect the health and safety of citizens,” without violating the TCPA.  The FCC released the Declaratory Ruling on its own motion, without being prompted to do so by a regulated party.

The TCPA prohibits companies from placing autodialed, prerecorded, or artificial voice calls and text messages unless the recipient grants permission. However, the TCPA provides an exception for calls made for “emergency purposes,” which are defined as “calls made necessary in any situation affecting the health and safety of consumers.”

To qualify as a call made for an “emergency purpose” under this Declaratory Ruling, the FCC spelled out a two-factor test:

  1. The caller must be – a) a hospital, health care provider, state or local health official, or other government official; or b) a person acting under the direction of such a person or organization;
  2. The content of the call must be “solely informational, made necessary because of the COVID-19 outbreak, and directly related to the imminent health or safety risk arising out of the COVID-19 outbreak.”

The FCC provided a few examples of the kinds of informational communications that would fall within the emergency purposes exception, including a call from a hospital with vital, time-sensitive information to educate the public and slow the spread of COVID-19, or a call from a county official with information about shelter-in-place requirements, quarantines, medical testing, or school closures necessitated by the national emergency. Calls containing advertising or telemarking services or calls to collect debts do not fall under the emergency purposes exception, even if these calls are COVID-19 related.

The Declaratory Ruling provides further assurances to organizations that have important information to communicate with citizens or customers as part of their COVID-19 response.

Our TCPA Working Group brings together more than 25 attorneys in our litigation, communications, commercial, and privacy practice areas. We provide regular TCPA counseling to clients from a broad range of industries, including technology, healthcare, communications, transportation, and financial services. We have secured dismissals and nominal settlements for clients in TCPA actions and have worked with the FCC to clarify rules addressing a number of key TCPA issues. We also have significant experience in TCPA appeals.