The FCC’s Declaratory Ruling Exempts COVID-19 Messages
The Telephone Consumer Protection Act (TCPA) establishes various restrictions on the use of calls or text messages, particularly without express consent. The TCPA does, however, include an exemption for “emergency purposes.” In the event there were any question regarding whether the current COVID-19 pandemic qualifies as an emergency under this exemption, the Federal Communications Commission (FCC) removed all doubt in late March 2020, issuing a Declaratory Ruling (DA 20-318). The Declaratory Ruling provides immediate emergency exemptions for government officials, health care providers, and state and local health officials, among others, to communicate information made necessary because of the COVID-19 outbreak so long as the information is directly related to the imminent health and safety risks arising out of the outbreak. The FCC has deemed this type of health information related to COVID-19 vital, time-sensitive, and necessary for health and safety purposes.
On top of this, the California Department of Health Care Services directed Medi-Cal managed care plans to communicate certain COVID-19 related information directly to their Medi-Cal members, such as the common signs of coronavirus and instructions on how to seek medical help.
Notwithstanding the fact that both the federal and state governments have encouraged state and local health officials to communicate important information to their members during this pandemic, some TCPA plaintiffs’ lawyers nevertheless view this crisis as an opportunity to threaten the health plans sending these messages, including the threat of potential class action lawsuits against the health plans.