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Federal and State Prohibitions and Exemptions for Calls During a State of Emergency
In view of recent developments related to the spread of the COVID-19 virus and declarations by the federal and some state governments of a State of Emergency, you should be aware of the impact of those declarations on your ability to legally make calls and send text messages in compliance with the Telephone Consumer Protection Act (TCPA) and state telemarketing rules.
On the federal level, no blanket extraordinary prohibitions are indicated, but the Federal Communications Commission (FCC) has carved out an exemption from its regular provisions for autodialed calls, prerecorded messages, and text messages made for emergency purposes.
Calls made for emergency purposes are defined as "calls made necessary in any situation affecting the health and safety of consumers." These emergency calls do not require prior express consent of the called party. The FCC has made it clear that "the legislative history of the TCPA indicates a congressional intent to interpret the term 'emergency' broadly rather than narrowly." Therefore, calls made to communicate information regarding the Coronavirus and its impact on consumers and employees likely fall outside of the TCPA's prior express consent requirements.
For example, calls to residential landlines that deliver a healthcare message from an entity covered by the Healthcare Insurance Portability and Accountability Act ("HIPAA") are completely exempt and can be made without the consent of the called party.
Calls to mobile phones using an auto dialer or an artificial or prerecorded message that deliver a healthcare message from a HIPAA-covered entity are still subject to TCPA liability but only require prior express consent, rather than prior express written consent. Such consent may be shown by the call recipient having provided his or her mobile number at the time of treatment. In order to qualify as a "healthcare message," it must "deliver a health care message" as that term is defined under HIPAA ("care, services, or supplies related to the health of an individual").
In order to fall within the exclusion, these calls must relate to one or more of the following:
These other conditions that must be met in order to qualify as a "Healthcare Message":
As for state rules, two states, Louisiana and New York, have been particularly aggressive in establishing prohibitions of unsolicited telemarketing calls during States of Emergency. Originally intended to be applied during extreme weather emergencies, these laws generally define unsolicited telemarketing sales calls as any telemarketing sales call other than a call made in response to an express written or verbal request by the customer or in connection with an established business relationship, which has not been terminated by either party. In New York, business-to-business and business-to-consumer calls are prohibited. In Louisiana, the prohibition only extends only to business-to-consumer calls.
There are exemptions from those state rules. In New York, political and survey calls are exempt because the restriction only applies to an "unsolicited telemarketing sales call", i.e. a call that is for the purpose of inducing payment or the exchange of any other consideration for any goods or services. In Louisiana, exemptions include solicitations in response to an express request, solicitations in connection with an existing debt or contract, existing business relationship calls, non-profit, polling, political activity, and appointment setting.
Information in this advisory is compiled from state and federal websites, as well as a variety of independent legal and advisory sources. Genesys does not provide legal advice. Be sure to consult your own counsel for legal advice.
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