FCC Asks Whether Giving Phone Number to Healthcare Provider Constitutes ’Prior Express Consent’


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January 2015 TCPA Compliance Monitoring Report

Notwithstanding the Federal Communication Commission’s (“Commission”) recent emphasis on its opt-out notice requirements for solicited fax advertisements, in December, the Commission took time to focus its attention on autodialed calls and telemarketing calls made by healthcare providers using an artificial or prerecorded voice. Calls subject to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) made by healthcare providers are exempt from certain provisions of the Telephone Consumer Protection Act (“TCPA”) and the Commission’s rules. However, calls made by or on behalf of a healthcare provider still must meet the general consent requirements in Section 64.1200(a)(1) of the Commission’s rules.

On Oct. 21, 2014, the American Association of Healthcare Administrative Management (“AAHAM”) filed a Petition for Expedited Declaratory Ruling (“Petition”) to clarify the application of the TCPA and the Commission’s rules to healthcare providers. AAHAM notes that its members call patients for a wide range of reasons, including communicating appointment and exam confirmations and reminders, lab results, hospital pre-registration instructions, pre-operative instructions, prescription notifications, available payment options, and social security disability eligibility.

Specifically, AAHAM’s Petition requests clarification that “the provision of a telephone number by an individual to a healthcare provider constitutes ‘prior express consent’ for non-telemarketing, healthcare calls to that telephone number by or on behalf of the healthcare provider,” including the provider’s business associates. AAHAM also asks the Commission to “exempt from the TCPA’s ‘prior express consent’ requirement certain non-telemarketing, healthcare calls when they are ‘not charged to the called party.’”

On December 17, 2014, the Consumer and Governmental Affairs Bureau (“CGB”) released a Public Noticeseeking comment on the issues raised in AAHAM’s Petition. CGB notes that “the TCPA permits the Commission to exempt from the prior-express-consent requirement autodialed or prerecorded calls to a wireless telephone number that are not charged to the called party, ‘subject to such conditions as the Commission may prescribe’ to protect consumer privacy.” Comments are due on January 16, 2015, and reply comments are due February 2, 2015.   

Other TCPA News and Notes:

A number of parties continue to file petitions seeking a retroactive waiver of the Commission’s opt-out notice requirements for solicited fax advertisements similar to the waiver granted by the Commission in its Anda Order. The Anda Order invited parties to seek retroactive waivers of the Commission’s opt-out notice requirements for solicited fax ads. However, the Order notes that only similarly situated parties may seek waivers.

On December 30, 2014, CGB issued a Public Notice seeking comment on whether the petitioners requesting waivers of the Commission’s opt-out notice requirements for solicited fax ads subsequent to the Anda Order fall within the guidance provided by the Commission in the Anda Order. Comments are due on January 13, 2015, and reply comments are due on January 20, 2015.

Finally, as noted in our December 2014 TCPA Compliance Monitor, the Commission released a Public Noticeseeking comment on a letter filed with the Commission by 39 State Attorneys General seeking clarification on whether telecommunications providers could legally take steps to implement call-blacking technology of likely telemarketing numbers. On December 17, 2014, CGB released an Order extending the deadline for filing both comments and reply comments in response to the Public Notice. The new deadline for comments is January 23, 2015, and the new deadline for reply comments is February 9, 2015.     

If you have any questions about the application of the TCPA to you or your business or you would like to request a waiver of the Commission’s opt-out notice requirements for solicited fax ads pursuant to the Commission’s Anda Order or you would like to file comments in response to the FCC’s Public Notices, please contact, Jane Wagner: jlw@commlawgroup.com – 703-714-1321 – Linda McReynolds: lgm@commlawgroup.com – 703-714-1318 – or Robert Jackson: rhj@commlawgroup.com – 703-714-1316.

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