What Businesses Need To Know About TCPA Text Regulations And The Coronavirus (Updated)

In the presence of an emergency, there are exceptions to the normal TCPA regulations that surround text messages.

The current situation with COVID-19, however, is unprecedented, which has opened up some space for confusion.

What exactly is considered an emergency message? If the topic is related to public health, can you send out a text blast without express written consent from all of your contacts?

We’ve reviewed the existing Telephone Consumer Protection Act (TCPA), Federal Communications Commission (FCC) guidelines, as well as relevant case law to get to the bottom of these questions.

💡Please note that this advice is for informational purposes only and is neither intended as nor should be substituted for consultation with appropriate legal counsel and/or your organization’s regulatory compliance team.

How Does a State of Emergency Impact Existing TCPA Consent Regulations?

The simple answer is that many coronavirus-related “emergency” text messages may be exempt from the existing TCPA consent regulations.

As of March 20, 2020, the FCC released a Declaratory Ruling that confirmed the coronavirus pandemic qualifies as an emergency under the Telephone Consumer Protection Act (TCPA).

According to the TCPA, to determine if your message qualifies as an “emergency purpose” under this Declaratory Ruling, it must meet the following criteria:

1. “The caller must be – a) a hospital, health care provider, state or local health official, or other government official; or b) a person acting under the direction of such a person or organization;
2. The content of the call must be “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.”

The FCC also provided a few sample scenarios to demonstrate what these emergency messages might look like. They included:

• A message from a hospital with vital, time-sensitive information to educate the public and slow the spread of COVID-19
• A message from a county official with information about shelter-in-place requirements, quarantines, medical testing, or school closures necessitated by the national emergency. 

What Kind of Coronavirus-Related Text Messages Apply To The TCPA Emergency Exemption?

Texts about the coronavirus that fall under the emergency purposes exemption must be just that, an emergency.

If your subscribers have given you express written consent to send them messages already, you’re free to continue communicating with them about all things marketing and non-marketing.

In the instance that you have a coronavirus-related text message for folks who have not provided their prior consent, and you’re wondering if you can send it anyway, here are some ways to figure out if you’re exempt and able to move forward.

There are a few straightforward do’s and don’ts:

• If you are a school needing to initiate an emergency communication plan, the FCC has determined that “messages [from schools] relating to weather closures, incidents of threats and/or imminent danger to the school due to fire, dangerous persons, health risks, and unexcused absences” fall within the emergency purposes exemption.
• If your message is marketing in nature (a deal on cleaning products and hand sanitizer that can combat the spread of the virus for example) it is not considered emergency communication.
• Despite occurring amidst a pandemic, messages regarding things like debt collection, appointment reminders, survey calls, and payment reminders still require express written consent.

Some instances can get a little murkier:

• If you’re a pharmacy, certain prescription reminders and updates may be essential to share during a public health pandemic. If someone isn’t able to access medicine or medical devices, their health and safety may be threatened which would constitute an emergency. These should be approached on a case by case basis.

What To Do If You’re Unsure If Your Message Is Marketing or Emergency

As with any consent-related question, we encourage you to seek legal counsel to help determine if your message is marketing or emergency content.

You may also find helpful information in blogs and articles from the Womble Bond Dickinson’s TCPA Defense Force— a group of attorneys who specialize in TCPA law.

If you’re still unsure, you can always highly publicize a method to subscribe to text updates. Give your audience plenty of ways to legally subscribe to your messages through keywords, web forms, click-to-text buttons, and mobile sign-up widgets.

These methods not only provide legal peace of mind, but they work. It’s what the entirety of New York City is doing!

As a bonus, this is also a great way to boost accessibility and reach non-English speakers with keywords in different languages.

The coronavirus is an emergency of international proportions. As citizens of the world, we have a moral responsibility to care and look out for one another, which includes sharing information that will protect the spread of this virus.

These exemptions are in place to do just that.

Key Takeaways

💡Congressional intent points to a TCPA express consent exemption for calls (and messages) made to communicate information about the Coronavirus and its impact to consumers and employees.

💡Messages that are marketing in nature, even if they’re marketing products to help prevent the spread of the virus, still require consent.

💡If you’re worried your messages may not fall under the emergency exemption, but you still want to share them with your audience, we encourage you to provide ample opportunity for folks to subscribe to your messages.