Generally speaking, no opt in, no texting.
That’s the rule that many businesses and organizations that use texting to communicate with their audience follow to comply with the Telephone Consumer Protection Act (TCPA). It’s generally unlawful to text consumers, clients or patients without their prior written consent. However, this rule has now been partially relaxed due to the COVID-19 outbreak.
The Federal Communications Committee (FCC) confirmed that the COVID-19 pandemic is an “emergency” under the TCPA, and as such, hospitals, health care providers, state and local health officials and other government officials may lawfully communicate information about the novel coronavirus to their audience without violating federal law if they meet certain conditions.
Why is the opt-in rule being relaxed for select organizations and businesses?
Automated text messages (and calls) are allowed under the TCPA’s “emergency purposes” exception when the message is necessary to protect the health and safety of citizens. In the official Declaratory Ruling, the FCC states that efforts to slow the spread of COVID-19 can be achieved in part by effective communication with the American public about measures that can prevent virus transmission as well as other “health and safety information that could save lives.”
What qualifies as a text made for an emergency purpose?
The FCC says that qualifying as an “emergency purpose” depends on who is texting and the content of the text.
- The texter “must be from a hospital, or be a health care provider, state or local health official, or other government official as well as a person under the express direction of such an organization and acting on its behalf.”
- The content “must be solely informational, made necessary because of the COVID-19 outbreak, and directly related to the imminent health or safety risk arising out of the COVID-19 outbreak.”
Examples of lawful text messages during the COVID-19 outbreak
The FCC gave the following as examples of lawful text messages that fall under an emergency purpose message.
- A text “originating from a hospital that provides vital and time-sensitive health and safety information that citizens welcome, expect, and rely upon to make decisions to slow the spread of the COVID-19 disease…”
- An informational text “designed to inform and update the public regarding measures to address the current pandemic made on behalf of, and at the express direction of, a health care provider would be made in a situation that ‘affect[s] the health and safety of consumers..’”
- A text “made by a county official to inform citizens of shelter-in-place requirements, quarantines, medically administered testing information, or school closures necessitated by the national emergency… as such measures are designed to inhibit the spread of the disease.”
Remember, you always can communicate with your patients, customers and consumers who agreed to receive texts with nonemergency information that is useful to them, including marketing messages, appointment reminders, etc. depending on the type of consent you have obtained from the recipient. Just be sure you have written consent before sending those messages.
Disclaimer: This blog post is not intended to be used for legal advice regarding compliance with TCPA or any other statute. Businesses should consult legal counsel for specific legal guidance about adoption of any listed best practice or use of any particular texting solution to meet compliance requirements.