Well the team and I are at the Affiliates Summit West and–wouldn’t you know it–there is big news out of the FCC while I was out.
So setting the stage here, a little while back I reported on the Secretary of the US Department of Health and Human Services reaching out to the FCC to seek clarity on what messages can be sent to some 86MM people who rely on government health programs:
MAXIMUM TCPA CONFUSION: Federal Government Agency (and 86 Million People) Caught in the TCPA Morass
Shortly thereafter I reported on the NCLC’s comments on the HHS petition–including its claim that the FCC’s reassigned numbers database offered a complete solutions to callers trying to avoid liability for wrong number calls:
NCLC Tells FCC “Callers can easily avoid making calls to telephone numbers that have been reassigned….”–But Is it That Simple?
Well yesterday the FCC issued its ruling on HHS’ petition–predictably granting the government the ability to communicate with covered individuals–and parroting the NCLC, which is apparently a policy-making body these days.
In the ruling–that you can read here HHS ruling–the FCC affirms that the government and its contractors may contact consumers on numbers provided on applications for health service. The FCC finds, in essence, that any reasonable consumer would expect that by providing the number on the application they might receive autodialed and prerecorded calls from the government related to their health coverage:
Consistent with Commission precedent, we confirm that a consumer who provides their telephone number in an application form used to determine eligibility or seek benefits from Medicaid, CHIP, BHP, and Marketplace health care coverage has given their prior express consent to be called or texted at that number by local governments, governmental contractors, and managed care entities when acting under contract and pursuant to the authorization and direction of a federal or state agency with equipment covered by the TCPA regarding eligibility for and ongoing enrollment in those programs.
This ruling was entirely predictable–and probably unnecessary–since the FCC has long recognized that express consent is presumed any time a consumer receives non-marketing messages from a business to which the consumer has provided their number as long as they did so for a purpose “closely related” to the calls at issue.
The FCC also took the opportunity to reaffirm that federal and state governments and their employees are exempt from the TCPA, while local governments and contractors are not.
Again, nothing new to see here.
The most interesting part of the ruling from my perspective was the FCC’s decision to kneel before the NCLC and give it top billing on a couple of gratuitous paragraphs that reemphasized the need for callers to have express written consent for marketing calls and to use the reassigned numbers database:
We caution, as NCLC urges, that consumers in this context have not consented to calls or
texts that contain advertising or constitute telemarketing.41 Consent to make an autodialed or prerecorded call or send an automated text that contains advertising or constitutes telemarketing, must be in writing and after certain disclosures.42 The mere provision of a telephone number does not satisfy these conditions. Additionally, consumers may revoke prior express consent using any reasonable method— orally or in writing.43 Callers relying upon prior express consent to make autodialed or prerecorded calls, therefore, must be prepared to honor revocation requests made by any reasonable means from recipients who no longer wish to receive calls and texts relating to governmental health care programs.44 We also note that the burden is on the caller to prove that it obtained the necessary prior express consent if any question arises as to whether prior express consent was provided by a call recipient.45 If so, callers will need to demonstrate that the telephone number called was provided on an application for governmental health care benefits.
Well thank you for that reminder NCLC, I am glad you are in charge of the FCC now.
The NCLC er, FCC, would also like to tell you to use the reassigned numbers database (which I agree with):
Finally, we emphasize that even calls made to telephone numbers that have been provided by the called party may be subject to TCPA liability if the number has been reassigned from the person who provided consent.46 As NCLC notes, the Reassigned Numbers Database (RND) is a critical tool callers should use to avoid calling a person whose telephone number has been reassigned to another individual.47 Callers that make use of the RND can ensure that they are making the most efficient use of their limited resources by avoiding calls to unintended recipients while ensuring compliance with the TCPA.48 We therefore strongly encourage all callers relying upon prior express consent to utilize the RND before making such calls.
So there you go. Use the reassigned numbers database. (In case you missed it we had Beth Sprague–the director of the RND–on our podcast a few weeks back. You can watch it here.)
Plus I am hearing that the FCC may be attending LeadsCon and joining Beth and the Czar on a panel… ssssh don’t tell anyone.
So bottom line here, HHS can do what it could probably already do and send updates on healthcare to individuals who have requested that information as long as it is not telemarketing. Telemarketing messages can also be sent–but only with express written consent. And everyone has to use the RND to avoid calls to wrong numbers–except for federal and state governments, who are exempt from the TCPA.