The Silver Lining in the FCC’s TCPA Declaratory Ruling: Exemptions for Certain Healthcare and Financial CommunicationsJuly 30, 2015
On July 10, 2015, the Federal Communications Commission (FCC) issued a declaratory ruling addressing a host of issues related to the Telephone Consumer Protection Act (TCPA). Although the business community has largely viewed the ruling with disfavor (click here for a fuller explanation), there is a bright side: The ruling provided much-needed clarification and flexibility for healthcare providers and financial institutions by declaring exemptions from the TCPA for certain communications.
FCC Exemptions from the TCPA
The TCPA prohibits anyone from making any non-emergency calls to a cell phone using an automatic telephone dialing system ("autodialer") or a pre-recorded message without prior express consent. According to the FCC (and some courts), this prohibition applies not only to voice calls, but also to text messages and internet-to-text messages. The FCC, however, has the power to exempt various "free to end user" calls from the TCPA's consent requirement. In response to petitions from the American Association of Healthcare Administrative Management and the American Bankers Association, the FCC used this power to exempt certain "messages about time-sensitive financial and healthcare issues." To qualify for the exemption, the communications must meet a host of requirements, the most basic being that the called party cannot be charged for the communications by their cellular provider. The specific requirements for healthcare and financial communications are described below.
Exemptions for Certain Healthcare Communications
The FCC's ruling permits "covered entities" and "business associates" (as defined by HIPAA) to send autodialed or prerecorded calls or texts that are for a "healthcare treatment purpose." The FCC explained that a healthcare treatment purpose includes appointment and exam confirmations and reminders, wellness checkups, hospital pre-registration instructions, pre-operative instructions, lab results, post-discharge follow-up intended to prevent readmission, and prescription notification.
In order to receive the benefit of this exemption, the following conditions must also be met:
- The communication is sent only to the wireless telephone number that the customer provided to the healthcare provider;
- The communication states the name and contact information of the healthcare provider (these disclosures must be made at the beginning of a voice call);
- The communication does not contain any telemarketing, solicitation, or advertising and do not include accounting, billing, debt-collection or other financial content;
- The communication is short (one minute or less for voice calls and 160 characters or less for text messages);
- Healthcare providers cannot send more than one communication per day to a patient, and may send a maximum of three communications per week per healthcare provider;
- Healthcare providers must provide customers with an "easy" means to opt-out of receiving the communication (i.e., an interactive voice or key press-activated opt-out mechanism for voice calls);
- The communication must comply with HIPAA privacy rules;
- Healthcare providers must immediately honor opt-out requests.
It is important to highlight that this exemption does not include calls relating to account, payment, or billing issues. For example, any payment notification sent via text message could still fall under the purview of the TCPA and thus require a healthcare provider to obtain prior express consent from the recipient of the message. The FCC did provide guidance on what constitutes prior express consent to receive communications from a healthcare provider. It determined that "the provision of a telephone number to a health care provider constitutes prior express consent." The FCC also explained that, where a party is unable to consent because of medical incapacity, prior express consent to make healthcare communications may be obtained from a third party—much as a third party may consent to medical treatment on an incapacitated party's behalf. The prior express consent ends at the time the patient is capable of consenting on his or her own behalf, and the prior consent provided by the third party is no longer valid once the period of incapacity ends.
Exemption for Certain Financial Communications
The FCC determined that communications concerning four topics—(1) potential fraud or identify theft, (2) data security breaches, (3) steps to take and prevent identity theft following a data breach, and (4) money transfers—should be exempted from TCPA's consent requirement because "the requirement to obtain prior express consent could make it impossible for effective communications of this sort to take place." As with the healthcare communications, the exemption only applies if the communication is free to the recipient, sent to the number provided by the customer, contains the name and contact information of the financial institution, limited to the four exempted purposes, concise, and contains an opt-out method (with opt-out requests honored immediately. In addition, financial institutions cannot send more than three messages per event over a three-day period for any affected account.
In light of the FCC's ruling, it would be prudent for healthcare providers and financial institutions that communicate with their customers or others through voice calls, text messages, or internet-to-test messages to consult a professional to determine whether their communications fit within the TCPA's narrow exemptions or are otherwise compliant with the statute.