March 26, 2020 - Coronavirus (COVID-19), TCPA

Text Messaging in a Time of COVID-19: FCC Guidance on “Emergency Messages” and Restrictions on Telemarketing in New York

With nearly half of the United States population being either urged or ordered to stay at home and avoid all non-essential travel in light of the COVID-19 crisis, modern forms of communication such as telephone calls, video chat, and, of course, text messaging, are providing critical connections between business and consumers. Indeed, businesses may be looking for ways to reach consumers with information about inventory, shipment status, and other issues related to an increase in demand for all the things that people need to “shelter-in-place”—from groceries to yoga mats.

Businesses by now know that calling or sending text messages to consumers is fraught with risk in light of the Telephone Consumer Protection Act (“TCPA”), which carries stiff statutory penalties and is a favorite tool of the class action plaintiffs’ bar. For the uninitiated, the TCPA regulates:  1) “autodialed, prerecorded, or artificial voice calls” to wireless telephone numbers, including text messages, without the prior express consent of the called party;[1] and 2) artificial or prerecorded voice calls to residential telephone numbers without the prior express consent of the called party.[2] In reviewing call or text message campaigns for TCPA compliance in light of the COVID-19 crisis, however, eagle-eyed readers may have noticed that the TCPA exempts from liability calls and messages that are made for “emergency purposes.”[3] But as the FCC recently clarified in a March 20 Declaratory Ruling, although the TCPA exempts calls made for “emergency purposes,” that exemption is very narrow and applies only in very specific circumstances.[4]

The FCC’s rules provide that “calls made necessary in any situation affecting the health and safety of consumers” qualify as calls for “emergency purposes.”[5] And in its March 20 Declaratory Ruling, the FCC acknowledged that “the current pandemic constitutes such an imminent health risk to the public.”[6] But the FCC determined that only “certain callers may lawfully make automated calls and send automated text messages to wireless telephone numbers when such calls are necessary to protect the health and safety of citizens pursuant to the TCPA’s ‘emergency purposes’ exception.”[7] Specifically, the FCC ruled that in order for the “emergency purposes” exception to apply, the calls or messages at issue must be:  1) made by hospital, healthcare provider, state or local health official, or other government official; and 2) “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.”[8] Thus, “calls that contain advertising or telemarketing” do not qualify for the exception, even if the goods or services being offered may be critical for consumers who face travel restrictions.[9] The FCC specifically stated that calls “advertising a commercial grocery delivery service, or selling or promoting health insurance, cleaning services, or home test kits” are not exempt from the TCPA.[10] Accordingly, business should remain vigilant in all aspects of their TCPA compliance programs, despite the national emergency.

One final note:  businesses must also be mindful about navigating individual state laws and emergency provisions governing telemarketing in the current environment. For example, last year, New York State passed legislation prohibiting “unsolicited telemarketing sales call to any person in a county, city, town or village under a declared state of emergency.”[11] On March 7, 2020, Governor Cuomo declared a state of emergency. So, although New York law permits certain unsolicited telemarketing calls made during specific hours, and with required disclosures,[12] while the state of emergency is in effect—currently until September 7, 2020[13] all unsolicited telemarketing calls in New York are prohibited. Companies therefore should remember that telemarketing call compliance does not end with the TCPA; it requires a multistate approach.

[1] See In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, DA 20-318 (March 20, 2020) (the “March 20 Declaratory Ruling”); 47 U.S.C. § 227(b)(1)(A).

[2] 47 U.S.C. § 227(b)(1)(B).

[3] See 47 U.S.C. § 227(b)(1)(A), (b)(1)(B).

[4] See March 20 Declaratory Ruling.

[5] See 47 CFR § 64.1200(f)(4).

[6] See March 20 Declaratory Ruling.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] N.Y. G.B.L. § 399-z(5-a).

[12] See NY G.B.L. §§ 399-p(2), 399-z(2).

[13] https://www.governor.ny.gov/news/no-202-declaring-disaster-emergency-state-new-york.