The FCC’s Shopper and Governmental Affairs Bureau final week issued a declaratory ruling resolving a long-pending Petition on the query of whether or not sure healthcare-related calls, given their significance and worth for shoppers, needs to be fully exempted from the TCPA’s prior categorical consent requirement, or at the least exempted so long as shoppers are allowed to choose out of the calls. The Bureau declined the petitioner’s invitation to create new healthcare exemptions or increase the scope of exemptions already in place for sure sorts of health-care-related calls.
In 2012, the FCC adopted an exemption for calls or texts “that ship a ‘well being care’ message made by, or on behalf of, a ‘coated entity’ or its ‘enterprise affiliate,’ as these phrases are outlined within the HIPAA Privateness Rule.” 47 C.F.R. § 64.1200(a)(2). As an alternative of “prior categorical written consent,” these healthcare calls and textual content messages solely require the recipient’s “prior categorical consent” when delivered to a cellular phone quantity and once they fulfill different necessities. When delivered to a residential land line, such calls are exempted by the 2012 ruling from any type of prior categorical consent. In 2015, the FCC created an extra exemption for a subset of calls or texts to cellphones which can be for sure specified “exigent” healthcare functions and the place the decision or textual content is just not charged to the recipient. These calls or texts are exempt from any prior-consent requirement, however the FCC explicitly restricted the 2015 exemption to eight particular classes of healthcare messages, and the ruling was additional topic to restrictions that these calls or texts couldn’t embody “telemarketing, solicitation, or promoting content material” or be made for “accounting, billing, debt-collection, or different monetary” functions, in addition to different restrictions, together with restrictions on the period of every name and the variety of such calls that could possibly be made by a caller to any specific affected person. These two regulatory exemptions are along with the TCPA’s statutory exception from the prior-express-consent requirement for calls made for “emergency functions.” See 47 U.S.C. § 227(b)(1)(A)-(B); 47 C.F.R. 64.1200(f)(4) (defining “emergency functions” calls as “calls made mandatory in any state of affairs affecting the well being and security of shoppers.”).
In 2015, Anthem, Inc., a well being profit firm, petitioned the FCC for 2 rulings. First, Anthem requested the FCC to rule that healthcare plans and suppliers needs to be exempt from the necessity to acquire prior categorical consent earlier than making health-care-related calls “as long as [the callers] enable shoppers to choose out after the very fact.” Second, Anthem requested the FCC to rule that sure “nonemergency” however however “pressing” health-care-related calls made by healthcare plans and suppliers and “welcomed by prospects” needs to be fully exempt from any consent requirement. Anthem particularly recognized “case administration calls, preventative medication calls, . . . calls concerning the use and upkeep of medical advantages,” and texts of the identical nature because the sorts of communications it urged needs to be exempt. The Bureau rejected each requests.
In its declaratory ruling of June 25, 2020, the Bureau reiterated that the FCC has created particular exemptions for sure sorts of calls however that there isn’t any “broad exemption for health-care-related calls.” The Bureau famous, for instance, that the 2015 exemption is just not a “common exception to the prior-express-consent requirement,” however slightly, it’s a “restricted exemption … when [the calls] are, amongst different issues, free to the tip consumer.” As a preliminary matter, the FCC famous that the petitioner “has not argued it might fulfill [these] minimal factual necessities.”
Whereas the FCC has often acknowledged that consent might be implied from circumstances the place shoppers “knowingly launch their cellphone numbers for a specific objective” previous to the calls or texts in query, the Bureau was unwilling to use that logic to conclude that consent could possibly be implied from the preexisting relationship between a shopper and his or her healthcare supplier or healthcare plan, coupled with the patron’s failure to choose out of the calls. The Bureau famous that the existence of a “relationship” between the caller and the patron by itself neither constitutes prior categorical consent to obtain automated calls nor creates an exemption to the consent requirement. Additional, the Bureau famous that the TCPA requires “prior categorical consent earlier than making calls to the patron’s wi-fi cellphone quantity,” and the patron’s failure to choose out after receiving the decision doesn’t represent consent.
Turning to Anthem’s second request, the Bureau famous that whereas the petitioner claimed that calls about case administration, preventive medication and medical advantages are “pressing,” the FCC has by no means adopted an “pressing circumstances” exemption and declined to take action right here. The Bureau expressed skepticism that these calls would rise to the extent of calls “made for an emergency objective” as a result of they “don’t seem like made mandatory by incidents of imminent hazard together with well being dangers affecting well being and security.”
Lastly, the Bureau turned the desk on Anthem by remarking that to the extent that all these calls are “welcomed by” and “standard with shoppers,” as Anthem asserted, then “shoppers needs to be prepared to provide their prior categorical consent for them.”
In the long run, the Bureau declined a chance to chill out the burdens that the TCPA imposes on healthcare suppliers and well being plans trying to speak with their sufferers and members, however the ruling doesn’t seem to make a change within the regulation. Well being plans and suppliers should proceed to adjust to the prior-express-consent requirement or come inside both the statutory Emergency Functions exception or the FCC’s 2012 or 2015 regulatory exemptions for sure sorts of healthcare calls. This declaratory ruling doesn’t change the scope of these current exemptions. As an alternative, it serves as a reminder that the FCC seems reluctant to increase current TCPA exemptions and that well being plans, healthcare suppliers and different callers ought to have interaction in a rigorous fact-specific evaluation to find out whether or not a deliberate calling marketing campaign requires prior categorical consent from the known as events, and in that case, the kind of consent required.
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