I hate them, you hate them, we all hate robocalls with a passion (commonly used four-letter descriptions omitted here). But the Federal Communication Commission (“FCC”) had good reason last week to issue a Declaratory Ruling that under the Telephone Consumer Protection Act (“TCPA”), the coronavirus pandemic constitutes an “emergency” which invokes a statutory exception permitting certain kinds of robocalls to be made and texts to be sent without the consent of the recipient.
What constitutes an illegal robocall under the TCPA can be a fairly complicated question, which has led to a lot of litigation and requests for waivers. Leaving aside restrictions on calling numbers that have been registered on the Federal Trade Commission’s (“FTC”) “Do Not Call” list, whether or not a call made without the consent of the recipient is forbidden under the TCPA depends in part on whether it is automatically or manually dialed, whether called numbers are randomly generated or taken from customer lists, whether the called number is a landline or a cellphone, whether the message is recorded or live, and whether the call is made by a for-profit or non-profit entity or a political campaign.
We don’t have to delve into all those nuances here. The important point is that the FCC is trying to remove any regulatory impediment to fighting the coronavirus threat and so has made it clear that unsolicited calls by certain kinds of entities, with content limited to information about the pandemic, are permitted under the TCPA.
To qualify under the FCC ruling, the call must be made directly by, or by a person acting under the specific direction of, a hospital, health-care provider, state or local health official, or some other governmental official. The content of the message must consist solely of information made necessary because of the COVID-19 outbreak, and directly related to the imminent health or safety risk arising out of the outbreak. Examples include calls from hospitals about preventive measures and information about shelter-in-place, quarantines, testing, and school closures. The FCC contrasts these calls with calls that contain advertising or telemarketing of services — e.g., selling or promoting commercial grocery delivery services, health insurance, cleaning services, or home test kits. Those do not constitute calls made for an “emergency purpose.” Similarly, calls made to collect debts, even debts arising from health care treatment, are not made for an “emergency purpose,” because such calls are not time-sensitive, do not “affect the health and safety of consumers,” and are not directly related to an imminent health or safety risk. Thus, these debt collection, advertising, or telemarketing automated calls continue to require the prior express consent of the called party.
So, what about broadcasters and other news organizations making automated calls with information about the pandemic, even on a non-profit basis? What about adding to an otherwise permissible health care message offers to sell home test kits, grocery delivery, health insurance, and cleaning services? No deal – mixed content calls don’t qualify for the exception.
The FCC warns that it will show no mercy to scammers or others who try to take advantage of the pandemic to step up robocalls. The FCC is putting a lot of pressure on telephone companies to implement technology intended to validate calls before they go through, and they don’t intend to slow down their campaign against robocalls. While the agency is subject to Constitutional restrictions against “cruel and unusual punishment,” the Commissioners would probably not lose any sleep over unpleasant fates that might befall robocall abusers who are caught.
