FCC Says “No” To Anthem Ex Post Facto Opt Out Petition
The Federal Communications Commission (FCC), acting through its Consumer and Governmental Affairs Bureau (Bureau) has rejected a request to exempt certain health care related calls from the prior express consent requirement of the Telephone Consumer Protection Act (TCPA) (https://docs.fcc.gov/public/attachments/DA-20-669A1.pdf).
In 2015, health benefit company Anthem, Inc. (Anthem) asked the FCC 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 so long as they allow[ed] consumers to opt out of such messages after the fact.” (emphasis supplied). As a result, Anthem and other health plan providers would be able to “enroll their customers in message programs without ‘prior express consent’ and instead require consumers to take affirmative action to prevent such calls and text messages.”
At the same time, Anthem also asked the FCC to “exempt certain non-emergency, health care-related calls that are purportedly ‘urgent’ from the requirements of the TCPA.” It included “case management calls, preventative medicine calls, and calls regarding the use and maintenance of medical benefits” in this category.
In its Declaratory Ruling and Order, released on June 25, 2020, the Bureau said “no” to Anthem and affirmed that “callers must get consumers’ prior express consent before making autodialed calls or robocalls.”
First, Anthem had argued that “health care-related wireless calls should be exempt from the prior-express-consent requirement so long as consumers are allowed to opt out because there is a pre-existing relationship between the consumer and the caller (the consumer’s health care provider or health care plan) that constitutes consent.” The Bureau simply stated that “the mere existence of a caller-consumer relationship does not satisfy the prior-express-consent requirement for calls to wireless numbers, nor does it create an exception to this requirement.”
Second, as to the “urgent” call exception urged by Anthem, the Bureau noted that Anthem had cited “no statutory authority to support its request that we create an ‘urgent circumstances’ exemption. Beyond that fact, the Bureau was “skeptical that the types of calls Anthem would make under such an exception would reasonably be considered ‘urgent’ by consumers”, doubting that “calls to ‘educate members about available services and benefits’ were likely “to be so time-sensitive and critical to justify bypassing consumer consent.”
Third, the argument that health-care related calls would be “welcomed by consumers” justified a prior-express consent exemption fared no better. The Ruling observed that the “TCPA gives the Commission authority to only exempt specific, limited types of calls to wireless phone numbers from the prior-express-consent requirement; even in those narrow circumstances, whether those calls are welcomed by consumers has not previously been part of our inquiry.” The Bureau was not willing to add that factor here.
Finally, Anthem argued that its “TCPA exemption for health care-related calls made by health care plans and providers to wireless telephone numbers will not result in abuse because patient outreach is already subject to a strict regulatory regime under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) privacy rule.”
But the Bureau parried that theory as well, noting “that TCPA contains no exception to the prior-express-consent requirement for calls to wireless phone numbers if those calls are also regulated by other laws,” and “a call that complies with HIPAA requirements does not necessarily comply with TCPA requirements or satisfy that statute’s legislative goals.”
One thought, could the release of the Ruling and another by the Bureau on the same day signal increased FCC activity on the TCPA regulatory front? We will see.