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HHS Asks FCC To Clarify TCPA Rules for Healthcare Messages

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Comments sought regarding the permissibility of messages relating to Medicaid and other health coverage programs.

The FCC is seeking comment on a request for clarification submitted by the Department of Health and Human Services related to TCPA compliance for certain healthcare messages and the scope of sovereign immunity that could shield private companies from liability if they are communicating with consumers on behalf of government agencies.

Initial comments are due on May 17, 2022, and reply comments are due on May 24, 2022.

By way of background, the Telephone Consumer Protection Act (TCPA) regulates auto dialed and prerecorded calls to consumers, with different requirements depending on the nature of the call or text message, and the type of number called (wireless vs. landline). While the Supreme Court’s Facebook Ruling last year greatly reduced exposure for auto dialer claims, the requirements applicable to prerecorded calls were not impacted by this ruling. And ultimately, the TCPA’s statutory damages structure of $500/$1,500 per call still incentivizes many plaintiffs’ attorneys to chase text messages instead of ambulances, regardless of merit.

Against this backdrop, HHS is seeking assurances that “certain text messages and automated, prerecorded telephone calls to individuals’ cell phones” meant to encourage enrollment in various healthcare […]

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