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TCPA Compliance – What’s That?

on Monday, 11 January 2016 in Health Law Alert: Erin E. Busch, Editor

When is the last time your organization reviewed its Telephone Communications Protection Act (TCPA) compliance policy? With recent clarifications to the TCPA made by the Federal Communications Commission (FCC), now may be the time to pull your TCPA policy off the shelf and give it a once-over. In July 2015, the FCC released an Omnibus Declaratory Ruling and Order on the TCPA (Order), which provides clarification of provisions of the TCPA, which may require organizations to alter their compliance programs. Violations of the TCPA carry hefty penalties of a minimum of $500 per improper call, making compliance a monetary priority.

Enacted in 1991, the TCPA places strict rules on the use of auto-dialing and pre-recorded voice messages that businesses may use to call consumers. The TCPA has undergone changes and clarifications since its inception, with the last major rule change by the FCC taking effect in October 2013, which eliminated the “established business relationship” exception to TCPA compliance. TCPA rules vary based on the number to which a call is made. The two primary sets of rules apply to calls or text messages made to wireless numbers and calls to residential numbers.

Wireless Number Calls

The TCPA prohibits using a “automatic telephone dialing system” (“auto-dialer”) or an artificial or pre-recorded voice to initiate calls or texts to any wireless number, including calls/texts for advertising or telemarketing purposes, without the express prior written consent of the called party. Among other exceptions, this prohibition does not apply to calls made with the express prior consent of the called party when the call is made on behalf of a tax-exempt nonprofit organization, or calls made for a “health care” purpose by a “covered entity” or “business associate” as those terms are defined under the Health Insurance Portability and Accountability Act (“HIPAA”).

Residential Number Calls

The TCPA prohibits calls to residential lines that use an artificial or prerecorded voice without the express written consent of the called party. In addition to the HIPAA exception applicable to wireless numbers, this prohibition does not apply to emergency calls, calls made by tax exempt organizations, calls not made for commercial purposes, or calls that are made for commercial purposes but do not introduce an advertisement or constitute telemarketing.

Some of the most important clarifications that affect health care organizations made by the FCC in its 2015 Order regard the definition of “autodialer” and revocation of consent by a consumer. The Order attempted to clarify the definition of an “autodialer” system, which has likely broadened its scope. The clarification of “autodialer” now includes any system that has the present or future capability to store and produce numbers by a random or sequential number generator. The practical implication of this is that if a system does not presently have the capacity to store and generate numbers, but could be modified to do so, it may qualify as an autodialer under the TCPA. The FCC declined to provide a listing of systems or equipment which constitute “autodialers” adding to the uncertainty of this broadened definition. If a system is classified as an autodialer, express written consent must be obtained prior to initiating calls if another exception does not apply.

Secondly, the FCC clarified that revocation of consent by a called party may be given at any time and through any reasonable means, and that a calling organization may not limit the reasonable means for revocation of consent. Some examples of reasonable revocation include revocation through a consumer-initiated call, through an organization initiated call, or in-person at an organization’s location.

While many calls, such as calls pertaining to test results or prescription refills, made by health care organizations are likely exempt on substantive grounds from the TCPA, other calls made by or on behalf of the organization, such as a debt collection call, are not exempt under the TCPA on substantive grounds. With the elimination of the “established business relationship” exemption and the broadened definition of “autodialer,” many previously exempt calls may no longer be exempt. Therefore, to avoid compliance uncertainty, it is a best practice to obtain prior express written consent from consumers during initial intake. Further, these consents are only valid for five years, so having a system to store and track consents is vital. Now is the time to review or implement a TCPA compliance policy for your organization to avoid potential monetary liabilities.

Arianna C. Goldstein

Technology and Intellectual Property Section

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