FCC Issues Declaratory Ruling and Order in Anthem, Inc.

TCPA Connect

On June 25, 2020, the Federal Communications Commission (FCC or Commission) issued a Declaratory Ruling and Order in response to a 2015 petition by Anthem, Inc, a provider of health insurance (Anthem). Anthem requested that the Commission exempt health plans and providers from the Telephone Consumer Protection Act's (TCPA) requirement to obtain prior express consent before making health care-related calls and text messages to wireless telephone numbers so long as they allow consumers to opt out of such messages after the fact. Anthem also requested an exemption for certain non-emergency, urgent health care-related calls from the requirements of the TCPA. Anthem characterized these calls as case management calls, preventative medicine calls and calls regarding the use and maintenance of medical benefits. Anthem argued that these calls should be permitted for a number of policy reasons, including that these calls benefit consumers, are welcomed by consumers and are otherwise regulated.

The Commission denied these requests. As such, callers making these types of automated calls generally must obtain prior express consent before making calls to a wireless phone number and may not instead merely require consumers to affirmatively opt out of them after the fact. In the ruling, the Commission noted that the TCPA contains specific exceptions for “the narrow set of calls consumers are likely to want to receive,” like emergency calls, to wireless phone numbers but does not include a broad exception for health care-related calls.

The FCC ruled that the mere existence of a caller-consumer relationship neither satisfies the prior express consent requirement for calls to wireless numbers, nor creates an exception to this requirement; to the extent that calls are welcomed by consumers, callers should be able to obtain prior express consent for them. The FCC further declined to create an exemption for non-emergency, urgent health care-related calls; but, any calls covered by Anthem’s petition that would meet the criteria in its COVID-19 Declaratory Ruling would be governed by that ruling and thus not require prior express consent.

The Commission also declined to create an exception to the prior express consent requirement for calls to wireless phone numbers if those calls are also regulated by other laws. As the Health Insurance Portability and Accountability Act of 1996 (HIPAA) regulates the content of communications, while the TCPA regulates the methodology of a communication, a call that complies with HIPAA requirements does not necessarily comply with TCPA requirements.

Find the Declaratory Ruling and Order here.

Why it matters: This ruling clarifies that, absent a clear exemption, callers must obtain consumers’ prior express consent for these types of automated calls to mobile phone numbers and may not instead require consumers to affirmatively opt out of them after the fact. Callers should also note that this ruling may be a precursor to increased FCC activity relating to the TCPA.

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