TCPA: FCC Provides Additional Guidance on Autodialers, Declines to Create Exemption from the Prior Express Consent Requirement for Certain Health Care Communications

TCPA: FCC Provides Additional Guidance on Autodialers, Declines to Create Exemption from the Prior Express Consent Requirement for Certain Health Care Communications

Blog WilmerHale Privacy and Cybersecurity Law

Last week, the Federal Communications Commission’s Consumer and Governmental Affairs Bureau issued two declaratory rulings in matters relating to the Telephone Consumer Protection Act (TCPA). The TCPA is perhaps the most actively litigated consumer protection statute in the United States by private plaintiffs outside of the Illinois Biometric Privacy Act, and courts have taken inconsistent approaches on how to apply many of its provisions, including whether a technology used to make outgoing calls or texts constitutes an automatic telephone dialing system (“autodialer”) under the statute. Though its ruling is narrow, the P2P Alliance Declaratory Ruling provides some additional guidance about what is not an autodialer—texting technology that requires a person to manually dial each number and send each message, while the Anthem Declaratory Judgement Ruling and Order shows that the FCC remains reluctant to grant exceptions to the statute’s prior express consent requirement.


The TCPA prohibits any person from calling or text messaging someone else on a wireless phone using an autodialer or an artificial or prerecorded voice unless there is an emergency, or they have the called party’s prior express consent. See 47 U.S.C. § 227. The TCPA defines an autodialer as “equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.”  47 U.S.C. § 227(a)(1). 

In a much written about 2018 decision (including here), ACA International, et al. v. FCC, et al., the US Court of Appeals for the DC Circuit resolved a series of challenges to the July 10, 2015 Declaratory Ruling & Order of the Federal Communications Commission (FCC) implementing the statute, including to invalidate the Commission’s definition of autodialer. Despite the passage of two years since the decision and two requests for public comment on the topic by the Commission, the Commission’s interpretation of the autodialer definition remains pending. This uncertainty about the scope of the ATDS definition has led to divergent TCPA interpretations among the federal courts, and has helped bolster TCPA class-action litigation across the country. 

P2P Alliance

In the P2P Alliance declaratory ruling, the Bureau provides additional guidance as to what constitutes an autodialer under the TCPA. If a technology requires active and affirmative manual intervention to dial and transmit each number, it is not an autodialer. The Bureau also clarified that whether or not a technology can make calls or send texts to “a large volume of telephone numbers is not determinative of whether that equipment constitutes an autodialer under the TCPA.”

The Declaratory Ruling stems from a May 3, 2018 Petition for Clarification filed by the P2P Alliance in which it asked the Commission to clarify that peer-to-peer (P2P) text messaging is not subject to the TCPA’s restrictions on calls to mobile phone numbers. P2P text messaging uses an online platform or a mobile application to send Short Message Service (SMS) or Multimedia Messaging Service (MMS) messages to recipients and is used by many types of organizations, as well as political campaigns. In its Petition, the P2P Alliance emphasized that “each and every message transmitted using a P2P platform must be individually sent from a single sender to a single recipient” and that the technology “does not allow the simultaneous or sequential transmittal of messages to a list of recipients.” 

As with prior Commission precedent and some case law, the Bureau focused on the level of human intervention involved in sending out the text message. The Bureau explained that “if a calling platform is not capable of dialing [] numbers without a person actively and affirmatively manually dialing each one, that platform is not an autodialer and calls made using it are not subject to the TCPA’s restrictions on calls to wireless phones.”  (Emphasis added.)  Although the Bureau declined to decide whether any particular P2P platforms at issue in the Petition were autodialers, it noted that to the extent a person would have to manually dial each recipient’s number and transmit text messages one at a time and could not send multiple text messages without a person manually dialing each recipient’s number, that texting platform would not be an autodialer. The Bureau also reiterated that where the texts are “made to parties that have knowingly released their telephone number to the caller for a particular purpose” and the texts are within the scope of that consent, the texts would be permissible under the TCPA, regardless of whether or not the technology used was an autodialer. 


A declaratory ruling and order issued by the Bureau the same day as the P2P Alliance ruling declined to exempt health plans and providers from the need to obtain prior express consent before making health care-related calls and text messages to wireless telephone numbers. Anthem had asked that these calls and texts be permitted without requiring prior express consent so long as consumers were given the ability to opt out of such messages after the fact. 

The Bureau reiterated that express consent was needed prior to making such calls or texts and that more than just a pre-existing relationship was needed between the consumer and the caller to establish the requisite level of consent under the TCPA. The Bureau also clarified that a call or text that complies with the Health Insurance Portability and Accountability Act, which regulates covered entities and business associates use and disclosure of protected health information, does not necessarily comply with the TCPA’s requirements as the statutes serve different functions: “HIPAA regulates the content of the communications (to ensure the privacy of patient information) whereas the TCPA regulates the methodology of the communication (to restrict calls and texts made using an autodialer or an artificial or prerecorded voice, and made without prior express consent of the called party).”  In a footnote, the Bureau reminded Anthem that a 2015 Commission order adopted a limited exemption to the prior express consent requirement for certain health care related calls and texts that were free to the end user, specifically those “for which there is exigency and that have a healthcare treatment purpose, specifically: 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, prescription notifications, and home healthcare instructions.”

The Bureau’s ruling also rejected Anthem’s request to exempt “urgent” health care related calls or texts from the TCPA’s prior express consent requirement, though it noted that such calls or texts falling within the scope of the FCC’s recent COVID-19 Declaratory Ruling would be made for emergency purposes and would therefore be permissible under TCPA without such consent. 


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