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April 03, 2020
Health Law Weekly

Text Messaging During COVID-19: FCC Guidance to Healthcare Providers

  • April 03, 2020
  • Ashley L. Thomas , Morris Manning & Martin LLP

In response to the COVID-19 outbreak, the Federal Communications Commission (FCC) issued a Declaratory Ruling (Ruling) confirming that the COVID-19 pandemic constitutes an imminent health risk to the public and is now classified as an emergency under the Telephone Consumer Protection Act (TCPA), which permits certain callers to lawfully make automated calls and send text messages for health and safety reasons. As a result, hospitals, health care providers, and state and local health officials can lawfully communicate information through automated or pre-recorded calls to wireless telephone numbers to help educate the public and mitigate the spread of this pandemic.

The TCPA was enacted in response to the substantial rise in volume of telemarketing calls and it remains one of the major federal statutes governing telecommunications commerce. The TCPA primarily regulates tools telemarketers use to make calls to consumers, such as automated telephone dialing systems (ATDS) and artificial and prerecorded voice recordings. The law covers calls for three types of telephone lines: (1) wireless, including SMS text messages and voice over internet protocol (VoIP) services; (2) landlines; and (3) fax lines.

The TCPA places prohibitions and restrictions on telemarketing calls and text messages to wireless and residential landlines as well as robocalls to medical facilities and emergency numbers lines. To make an automated call or text message to a cell phone, an organization needs to obtain prior express consent of the individual receiving the message. However, the TCPA does permit an exception for communications made for emergency purposes that are clearly time sensitive and directly related to the mitigation of a health and safety risk to the public. Violating the TCPA can result in significant statutory damages of at least $500, and up to $1,500, per call or text. 

In determining whether a call relating to the COVID-19 pandemic qualifies as a call made for an emergency purpose, the FCC looks to the identity of the caller and content of the call. In the Ruling, the FCC stated that for a call to qualify as an emergency relating to the COVID-19 pandemic:

  1. The caller must be from a hospital, a health care provider, state or local health official, or other government official as well as a person under the express direction of such an organization and acting on its behalf.
  2. 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.

The FCC explained that calls or texts that comply with the emergency purpose exception are messages that provide vital and time-sensitive health information that individuals can expect and rely upon to stop the spread of the disease. A permissible example provided by the FCC includes a county official sending out messaging informing the public regarding a shelter-in place order, quarantines, school closures, or available medical testing information and sites. By contrast, calls containing advertising or marketing messages would not be permissible and fail to meet the emergency purpose exception. Messages falling outside the scope of the emergency purpose exception include advertising for health insurance, commercial delivery services, or home testing kits. Calls made for debt collection purposes even if the debt arises from health care treatment also would not be considered an emergency purpose as these messages are not time sensitive and do not provide an imminent health or safety risk. Health care providers wanting to send messages under the emergency purpose exception will need to ensure the message is solely informational and does not contain any marketing or advertising. Marketing or advertising messages will require the health care provider or hospital to obtain prior express consent before sending the message.

In addition, the FCC acknowledged in the Ruling that scammers are seeing the coronavirus as an opportunity to prey on consumers as there has been an increase in fraudulent robocalls offering free home testing kits and promoting bogus cures.

Hospitals and health care providers also should be mindful in navigating state law and regulatory requirements regarding emergency messaging in addition to the TCPA requirements. For instance in New York, it is unlawful to engage in any unsolicited telemarketing sales call to any person in a county, city, town or village under a declared state of emergency.[1] However, there are exceptions for certain categories of calls such as debt collection, calls to for-profit businesses, and calls in which a transaction was not completed.

To effectively minimize the risk of potential liability under the TCPA, hospitals and health care providers need to understand that the emergency purposes exception is context specific and messages should be crafted to comply with the Ruling. Even if the message relates to products or services that can mitigate the spread of COVID-19, communications should be sent for informational purposes only. Where possible, hospitals and health care providers should seek the prior consent of the recipients to receive the communications at issue. Hospitals and health care providers should continue to monitor and watch for any additional guidance that the FCC may provide related to TCPA messages and calls.

[1] N.Y. Gen. Bus. Law § 399-z(5-a).
On the Front Lines