By Bradley Miller, NADA Director, Legal and Regulatory Affairs
NADA alerts dealers that the Federal Communications Commission (FCC) released a short order March 20, 2020 clarifying that the COVID-19 pandemic constitutes an “emergency” under the Telephone Consumer Protection Act (TCPA).
Accordingly, hospitals, health care providers, state and local health officials, and other government officials may place calls and texts about the novel coronavirus as well as mitigation measures, pursuant to the TCPA’s exception for calls made for “emergency purposes.”
The ruling has two key limitations:
- The caller 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 of the call 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.
This seems to pretty clearly indicate that dealers cannot generally rely on the emergency exception under TCPA for text message communications to customers – including otherwise well-intentioned messages about what steps the dealer is taking to respond/hours of operation/policies/etc.
Even a dealer who wants to notify customers of an exposure or other similar imminent health threat would not fit under this exception unless acting at the express direction of such an organization. Of course, dealers should consult legal counsel as necessary.
As if there were not enough to worry about these days, dealers also need to keep this on their radar.
One last related note to those who may not know, in late 2019, New York state amended its telemarketing law (A.B. 117), prohibiting telemarketers from knowingly making certain kinds of pre-recorded sales calls to consumers located in a county, city, town, or village that is under a state of emergency or disaster emergency.
While we’re not up to date the latest emergency declarations in New York, it is recommended to presume it now is in effect and would appear to raise an even broader potential issue for dealers in NY and those making calls to NY.
While we are currently not aware of other similar state prohibitions, it may be worth a quick review to determine if similar measures exist.