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 plans are permissible under the TCPA. In addition to confirming federal and state government employees’ immunity under the TCPA, HHS also asks the FCC to clarify that “contractors who deliver” such messages “generally will be immune from suit under the TCPA when the government agency authorizes and direct the contractor’s actions and the agency validly confers that authorization.” This is because, while not directly immune from TCPA liability, contractors can obtain derivative sovereign immunity if the government authorizes and directs the contractors’ actions, and validly confers that authorization. In other words, because the government agencies on whose behalf the calls or texts are sent cannot be liable themselves, the companies they instruct to contact consumers should also not be liable if they are simply carrying out the government’s directives. And to put a finer point on it, immunity in this context would mean that the calls and texts HHS seek to protect through this petition would effectively fall outside the TCPA. That is, even if the calls or texts were auto dialed or prerecorded, and sent to a consumer without their consent, the government’s sovereign immunity could protect even private companies communicating on a government agency’s behalf. 

Given that HHS, and many state agencies, appear poised to significantly ramp up text and prerecorded voice notifications to potential enrollees, this proceeding will be a great opportunity for government contractors – including subcontractors – to clarify the somewhat murky area of healthcare messaging. More specifically, in our experience, many of the companies that are texting or calling consumers on behalf of government agencies may not have a direct contract with CMS or a comparable state agency. This proceeding can therefore be used to fill in some possible gaps in perceived TCPA exposure in this area.