FEDERAL COMMUNICATIONS COMMISSION
Washington, DC 20554
In the Matter of Rules and Regulations ) CG Docket No. 02-278
Implementing the ) DA 22-487
Telephone Consumer Protection Act of 1991 )
Relating
to the Request for Clarification Regarding
TCPA Application to Robocalls and Automated Text Messages
to Encourage Continuation in Governmental Health Coverage Programs
Comments of
National Consumer Law Center
on behalf of its low-income clients
and
Consumer Action
Consumer Federation of America
Electronic Privacy Information Center
Florida Justice Project
Jacksonville Legal Aid, Inc.
Justice in Aging
National Association of Consumer Advocates
National Consumers League
National Health Law Program
Public Knowledge
U.S. PIRG
May 17, 2022
By:
Margot Saunders
Senior Counsel
Carolyn L. Carter
Deputy Director
National Consumer Law Center
1001 Connecticut Ave., NW
Washington, D.C. 20036
Table of Contents
I. Introduction and Summary 1
II. Under Commission rulings, the TCPA’s restrictions do not apply to calls
placed by federal or state governments or their employees 3
III. Automated texts and prerecorded calls to cell phones are legal with
prior express consent 5
1. The FCC and many courts have held that the called party’s
provision of a telephone number to the caller is sufficient to provide
prior express consent 6
2. Calls related to the original transaction are included in the prior
express consent 7
3. Callers can easily avoid making calls to telephone numbers
that have been reassigned to someone other than the enrollee 8
IV. The content of these calls should be limited to ensure that this
program is not used to facilitate scam or illegal telemarketing calls 9
V. The calls authorized by HHS should be carefully controlled 12
VI. Conclusion 14
1
Comments
I. Introduction and Summary
Pursuant to the Public Notice issued by the Consumer and Governmental Affairs Bureau,
1
the National Consumer Law Center (NCLC) files these comments on behalf of its low-income
clients and Consumer Action, Consumer Federation of America, Electronic Privacy
Information Center, Florida Justice Project, Jacksonville Legal Aid, Inc., Justice in Aging,
National Association of Consumer Advocates, National Consumers League, National
Health Law Program, Public Knowledge, and U.S. PIRG,
2
in response to the Federal
Communications Commission’s (Commission) call for comments on a letter from the Secretary of
1
See Public Notice, Federal Commc’ns Comm’n, Consumer & Governmental Affairs Bureau Seeks Comment
on Request Relating to Enrollment In Medicaid And Other Governmental Health Coverage Programs, CG
Docket No. 02-278 (Rel. May 3, 2022), available at https://docs.fcc.gov/public/attachments/DA-22-
487A1.pdf (inviting comments on the request filed by the U.S. Department of Health and Human Services).
2
The National Consumer Law Center (NCLC) is a nonprofit corporation founded in 1969 to assist legal
services, consumer law attorneys, consumer advocates, and public policy makers in using the powerful and
complex tools of consumer law for just and fair treatment for all in the economic marketplace.
Consumer Action. Through education and advocacy, nonprofit Consumer Action fights for strong consumer
rights and policies that promote fairness and financial prosperity for underrepresented consumers nationwide.
Consumer Federation of America advances the consumer interest through research, advocacy, and education.
Electronic Privacy Information Center is a public interest research center in Washington, DC seeking to
protect privacy, freedom of expression, and democratic values in the information age.
Florida Health Justice Project engages in comprehensive advocacy to expand health care access and promote
health equity for vulnerable Floridians.
Jacksonville Area Legal Aid, Inc. (JALA) is a non-profit law firm dedicated to providing free civil legal
assistance to those who could not otherwise afford it.
Justice in Aging uses the power of law to strengthen the social safety net, and remove the barriers low-
income seniors face in trying to access the services they need, we work to ensure the future we all envision for
our loved ones and ourselves.
National Association of Consumer Advocates is committed to protecting the rights of consumers.
National Consumers League educates consumers and workers through a variety of programs and fights for
their interests before government and businesses, building alliances to ensure their voices are heard.
National Health Law Program are attorneys litigating in state and federal courts and policy advocates fighting
to advance access to quality health care for low-income and underserved individuals.
Public Knowledge promotes freedom of expression, an open internet, and access to affordable
communications tools and creative works.
U.S. PIRG is your advocate for the public interest, speaking out for healthier, safer, more secure lives for all
of us.
2
Health and Human Services (HHS) seeking clarification of the requirements for consent for
automated calls made by various governmental entities and their private contractors to encourage
renewals and re-enrollment in Medicaid, the Children’s Health Insurance Programs (CHIP), the
Basic Health Programs (BHP), and the Health Insurance Marketplace programs (Marketplace).
3
The HHS letter expresses the concern that the potential for TCPA liability will prevent these
important calls from being made. Assuming that the calls are limited to the purposes described in
HHS’s letter and that the called parties provided the telephone numbers in a context related to the
subject of the proposed calls, it appears that they will conform to the Commission’s existing
interpretations of the TCPA.
The TCPA applies to most of the entities listed in the HHS letter as callers (all contractors
and local governments). They are therefore subject to the TCPA’s requirement that a caller have the
called party’s prior express consent before making an autodialed or prerecorded call or text to a cell
phone number. However, in other contexts the Commission has ruled that the called party’s
provision of their telephone number to the caller or an intermediary in relation to the subject of the
call constitutes prior express consent for automated texts and prerecorded calls to that telephone
number. While we reserve the right to object to that conclusion, we recognize that it would be
inconsistent for the Commission not to apply it to the calls described in HHS’s letter. We also note
that callers can easily avoid making calls to telephone numbers that have been reassigned to
someone other than the enrollee by using the fully operational Reassigned Number Database created
by the Commission.
3
Letter from Xavier Becerra, Secretary of Health and Human Services, to Jessica Rosenworcel, Chairwoman
of the Federal Commc’ns Comm’n (Apr. 28, 2022), available at https://www.fcc.gov/ecfs/search/search-
filings/filing/10429695829926 [hereinafter HHS Letter].
3
Also, it is imperative that both the Commission and HHS take steps to ensure that any
policy regarding these calls does not inadvertently facilitate any of the more of the tens of millions
of scam calls selling fake health insurance now made every month, or allow more unwanted
telemarketing calls or texts. In Section V, we make several recommendations to protect consumers
from scam calls and telemarketing calls.
II. Under Commission rulings, the TCPA’s restrictions do not apply to calls placed by
federal or state governments or their employees, but do apply to local governments
and to contractors.
HHS’s letter states that some of the calls will be placed by federal or state governmental
bodies or their employees. There is substantial authority, including a U.S. Supreme Court analysis
4
and the Commission’s own analysis in its 2020 “Broadnet Order,”
5
that the TCPA is inapplicable to
calls made by the federal government or its employees. These decisions note that the TCPA’s
restrictions on autodialed and prerecorded calls apply only to “person[s],”
6
and they interpret that
term not to encompass the federal government or its employees. The Commission’s Broadnet Order
applies the same analysis and holds that state governments are similarly not covered by the TCPA.
Accordingly, the TCPA’s requirements should not be an impediment to the calls described in HHS’s
letter when those calls are made by federal or state governmental agencies or their employees.
4
Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 136 S. Ct. 663, 672, 193 L. Ed. 2d 571 (2016). Accord Barr v.
Am. Ass’n of Political Consultants, Inc., ___ U.S. ___, 140 S. Ct. 2335, 2344 n.1, 207 L. Ed. 2d 784 (2020)
(“The robocall restriction applies to ‘persons,’ which does not include the Government itself.”); In re Rules &
Regulations Implementing the Tel. Consumer Prot. Act of 1991, Broadnet Teleservices, L.L.C. Petition for
Declaratory Ruling et al., Order on Reconsideration, CG Docket No. 02-278, at ¶¶ 9, 25 (F.C.C. Dec. 14,
2020), available at https://docs.fcc.gov/public/attachments/FCC-20-182A1_Rcd.pdf [hereinafter Broadnet
Order]. See also Cunningham v. Lester, 990 F.3d 361 (4th Cir. 2021) (finding federal government to be the real
party in interest in suit against federal employees in their personal capacities for directing robocall campaign
to promote affordable health insurance, so sovereign immunity bars the claim).
5
Broadnet Order, supra note 4, at ¶¶ 3, 22 (“[W]e clarify that state government callers in the conduct of
official business likewise do not fall within the meaning of ‘person’ in section 227(b)(1) . . .”).
6
47 U.S.C. §227(b)(1).
4
On the other hand, local governments are considered “persons” that are obligated to comply
with the requirements of the TCPA.
7
Moreover, contractors of any level of government are
“persons” as defined by the TCPA, so must comply with the TCPA’s consent obligations.
8
This
applies to contractors even if they are agents of the government.
9
The Commission noted that
federal contractors might qualify for derivative immunity when making calls on behalf of the federal
government, but it left that question for courts to determine.
10
Nevertheless, as explained in Section III of these comments, it appears that the called
parties’ provision of their telephone numbers during enrollment brings the callers within the scope
of Commission rulings that treat the provision of a telephone number to the caller or an
intermediary in relation to the subject of the call as prior express consent to receive automated calls
or texts at that number. While we do not endorse those rulings,
11
we recognize that, if they are
7
See Broadnet Order, supra note 4, at ¶ 29.
8
See id. at ¶ 14 (“We find that a federal contractor is a ‘person’ under section 227(b)(1). The term ‘person’ as
used in the TCPA and defined in the Communications Act expressly includes an ‘individual, partnership,
association, joint-stock company, trust, or corporation’ ‘unless the context otherwise requires.’ Every federal
contractor, including those acting as agents, falls within one of these categories. And, unlike the federal
government itself, there is no longstanding presumption that a federal contractor is not a ‘person.’ Nor do we
find any ‘context that otherwise requires’ us to ignore the express language of the Communications Act’s
definition of the term ‘person’ in this situation.”). See also id. at 22 (“[S]tate contractors, like their federal
counterparts, are ‘person[s]’ under that provision.”).
9
See id. at ¶ 14. It is important to note that the calls described in the HHS letter do not qualify as “calls made
by, or on behalf of, healthcare providers” that are exempt from the consent requirements for automated calls
to cell phones for two reasons: 1) These calls “are strictly limited” to calls for specific purposes, which do not
include enrollment issues (47 C.F.R. §64.1200(a)(9)(iv)(C)); and 2) only calls that are free to the called party
are eligible for the exemption allowed these calls (47 U.S.C. § 227(b)(2)(C)).
10
See Broadnet Order, supra note 4, at ¶ 15.
11
We do not agree that the simple provision of a telephone number constitutes the “prior express consent”
as required by the TCPA. As explained in comments filed by NCLC in 2017, the Commission’s interpretation
of this requirement is hard to justify, and we have urged the Commission to rule that the actions of the called
party that are deemed to be “prior express consent” must actually be express, as opposed to implied, and that
those actions must also provide explicit consent to receive autodialed and/or artificial voice or prerecorded
calls to a specified cell phone number. See, e.g., In re Rules and Regulations Implementing the Tel. Consumer
Prot. Act. of 1991 et al., Comments in Support of the Petition for Declaratory Ruling, CG Docket Nos. 02-
278 & 05-338 (Mar. 8, 2017), available at https://www.fcc.gov/ecfs/file/download/DOC-56ac3512f8c00000-
A.pdf?file_name=Comments%20in%20support%20of%20Petition%20on%20Consent.pdf.
5
applied to the calls in question, it will mean that government contractors and local governments
have the prior express consent that the TCPA requires to make calls to numbers provided by the
called parties in a context that relates to the subject matter of the proposed calls.
III. Automated texts and prerecorded calls to cell phones are legal with prior express
consent.
The Telephone Consumer Protection Act does not prohibit automated texts and
prerecorded calls. Instead, it only requires the prior express consent of the called party before such
calls can be made (and even the prior express consent requirement does not apply if the call involves
an emergency).
12
The HHS letter indicates that the calls and texts will be made or sent to “a contact phone
number provided by the enrollee”
13
or “updated contact information from other state agencies or
state-administered program.”
14
The Commission has ruled that, so long as the caller is calling a
number that was provided by the called party in a context related to the call, the called party is
considered to have provided the prior express consent required by the TCPA.
15
Courts have
generally accepted the Commission’s position.
16
Courts have also held that providing the telephone
12
47 U.S.C. § 227(b)(1)(A).
13
HHS Letter, supra note 3, at 7.
14
Id.
15
In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, Declaratory Ruling and
Order, CG Docket No. 02-078, WC Docket No. 07-135, 30 F.C.C. Rcd. 7961, at ¶ 47 n.474 (F.C.C. July 10,
2015), available at https://docs.fcc.gov/public/attachments/FCC-15-72A1_Rcd.pdf (“By ‘within the scope of
consent given, and absent instructions to the contrary,’ we mean that the call must be closely related to the
purpose for which the telephone number was originally provided. For example, if a patient provided his
phone number upon admission to a hospital for scheduled surgery, then calls pertaining to that surgery or
follow-up procedures for that surgery would be closely related to the purpose for which the telephone
number was originally provided.”). Accord In re Rules & Regulations Implementing the Tel. Consumer Prot.
Act of 1991, Blackboard, Inc. Petition for Expedited Declaratory Ruling et al., Declaratory Ruling, CG
Docket No. 02-278, 31 F.C.C. Rcd. 9054, at ¶¶ 23–25 (F.C.C. Aug. 4, 2016), available at
https://docs.fcc.gov/public/attachments/FCC-16-88A1.pdf (when a parent has given a school a cell phone
number as a contact, the scope of consent includes communications closely related to the school’s
educational mission or to official school activities).
16
See, e.g., Baisden v. Credit Adjustments, Inc, 813 F.3d 338, 343–344 (6th Cir. 2016) (stating that the context
6
number to an affiliate of the caller is sufficient, so long as the context in which the caller provided
the number relates to the automated call.
17
1. The FCC and many courts have held that the called party’s provision of a
telephone number to the caller is sufficient to provide prior express consent.
The HHS letter describes the calls at issue as calls that “follow up” with people who were
already enrolled in one of the programs,
18
to facilitate “renewals” of coverage.
19
While the TCPA
requires prior express consent for these automated calls, the Commission and courts have ruled that
there need not be an express agreement in which the called party has agreed to receiving automated
and prerecorded calls (although this is an interpretation with which we disagree). The Commission
and the courts have ruled that so long as the called party provided their telephone number to the
caller or an intermediary in relation to the subject of the call, the caller has prior express consent for
automated texts and prerecorded calls to that telephone number.
20
For example, the Commission
in which a debtor provides consent matters, but holding that patient’s provision of cell phone number to
hospital, which provided it to anesthesiologist, who then provided it to collection agency, was consent to
receive autodialed and prerecorded collection calls, even though consent form only allowed hospital to share
“health information”); Hill v. Homeward Residential, Inc., 799 F.3d 544, 551 (6th Cir. 2015) (provision of cell
phone number to initial creditor is consent to receive collection calls regarding that debt, “not on any topic
whatsoever”); Khalil v. McGrath Colosimo Ltd., 2018 WL 11216391 (N.D. Ill. Aug. 22, 2018) (calls must
relate to the same subject matter for which plaintiff disclosed his phone number); Fober v. Mgmt. & Tech.
Consultants, L.L.C., 2016 WL 7626431 (C.D. Cal. July 29, 2016) (patient satisfaction survey falls within scope
of consent to receive calls regarding “health plan operations” and “quality improvement”), aff’d, 886 F.3d 789
(9th Cir. 2018); Payton v. Kale Realty, 164 F. Supp. 3d 1050 (N.D. Ill. 2016) (scope of consent depends on
context and purpose for which plaintiff gave cell phone number, but providing it in context of potential
merger with caller’s business is consent to receive text messages two years later touting caller’s business as a
good place to work).
17
Toney v. Quality Res., Inc., 75 F. Supp. 3d 727 (N.D. Ill. 2014). See also Selby v. LVNV Funding, L.L.C.,
2016 WL 6677928 (S.D. Cal. June 22, 2016) (consent given to original creditor can be transferred to buyer of
debt and then to collector hired by debt buyer).
18
HHS Letter, supra note 3, at 1.
19
Id. at 2.
20
Williams v. Capital One Bank, 682 Fed. Appx. 467 (7th Cir. 2017) (giving cell phone number orally when
applying for credit card is consent to receive debt collection calls); Lawrence v. Bayview Loan Servicing,
L.L.C., 152 F. Supp. 3d 1376 (S.D. Fla. 2016) (letter sent to loan servicer that listed cell phone number was
consent to receive calls about the debt).
7
has stated that “the provision of a cell phone number to a creditor, e.g., as part of a credit
application, reasonably evidences prior express consent by the cell phone subscriber to be contacted
at that number regarding the debt.”
21
The Commission has also stated that consent can be obtained through an intermediary,
22
as
have at least two U.S. Courts of Appeals.
23
For example, the Ninth Circuit held that a patient’s
consent that a medical provider could disclose her information for purposes of quality improvement
was consent to receive patient satisfaction survey calls from a third-party contractor.
24
HHS’s request is consistent with these prior rulings of the Commission and the courts.
2. Calls related to the original transaction are included in the prior express consent.
The Commission has articulated that so long as the calls reasonably relate to the transaction
in which the called party provided the phone number, then prior express consent is considered to be
given for follow-up calls:
By ‘within the scope of consent given, and absent instructions to the contrary,’ we
mean that the call must be closely related to the purpose for which the telephone
number was originally provided. For example, if a patient provided his phone
number upon admission to a hospital for scheduled surgery, then calls pertaining to
21
In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, Request of ACA
International for Clarification & Declaratory Ruling, Declaratory Ruling, CG Docket No. 02-278, 23 F.C.C.
Rcd. 559, at ¶ 9 (F.C.C. Jan. 4, 2008). Accord In re Rules & Regulations Implementing the Tel. Consumer Prot.
Act of 1991, Declaratory Ruling and Order, CG Docket No. 02-278, 30 F.C.C. Rcd. 7961, at ¶ 52 (F.C.C. July
10, 2015) (reaffirming this position), appeal resolved, ACA Int’l v. Fed. Commc’ns Comm’n, 885 F.3d 687 (D.C.
Cir. 2018) (setting aside two parts of 2015 Declaratory Ruling, but leaving this portion undisturbed).
22
In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, Declaratory Ruling and
Order, CG Docket No. 02-278, 30 F.C.C. Rcd. 7961, at ¶ 49 (F.C.C. July 10, 2015), appeal resolved, ACA Int’l v.
Fed. Commc’ns Comm’n, 885 F.3d 687 (D.C. Cir. 2018) (setting aside two parts of 2015 Declaratory Ruling,
but leaving this portion undisturbed).
23
See Fober v. Mgmt. & Tech. Consultants, L.L.C., 886 F.3d 789 (9th Cir. 2018) (consent may be obtained
through an intermediary; patient’s consent that medical provider could disclose her information for purposes
of quality improvement was consent to receive patient satisfaction survey calls from third-party contractor);
Baisden v. Credit Adjustments, Inc., 813 F.3d 338, 343–346 (6th Cir. 2016) (consent obtained through an
intermediary is valid).
24
Fober v. Mgmt. & Tech. Consultants, L.L.C., 886 F.3d 789 (9th Cir. 2018).
8
that surgery or follow-up procedures for that surgery would be closely related to the
purpose for which the telephone number was originally provided.
25
Courts have also held that, when there was a series of similar transactions, such as visits to a
medical provider, providing a cell number in connection with one is effective for later transactions.
26
The later calls need not be for the exact purpose for which the number is provided, as long as they
“bear some relation to the product or service for which the number was provided.”
27
The Ninth
Circuit held that giving a cell phone number in connection with a gym membership was consent to
receive text messages about reactivating that membership after the consumer cancelled it.
28
3. Callers can easily avoid making calls to telephone numbers that have been
reassigned to someone other than the enrollee
A primary source of TCPA litigation risk has been calls inadvertently made to numbers that
are no longer assigned to the person who provided consent. Courts have held the caller liable for
making automated calls to a cell phone number that has been reassigned to someone other than the
person who provided consent to be called.
29
25
In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, Declaratory Ruling and
Order, CG Docket No. 02-278, 30 F.C.C. Rcd. 7961, at ¶ 47 n.474 (F.C.C. July 10, 2015).
26
Hudson v. Sharp Healthcare, 2014 WL 2892290 (S.D. Cal. June 25, 2014) (visit to hospital; rejecting
plaintiff’s argument that there was no prior express consent because her cellular telephone number
“autopopulated” from prior visit). See also Jackson v. Safeway, Inc., 2016 WL 5907917 (N.D. Cal. Oct. 11,
2016) (provision of cell phone number in connection with flu shot is consent to receive reminder call in next
flu season).
27
Hudson v. Sharp Healthcare, 2014 WL 2892290, at *6 (S.D. Cal. June 25, 2014) (citation omitted). See also
Taylor v. Universal Auto Grp. I, Inc., 2014 WL 12526280 (W.D. Wash. Oct. 3, 2014) (reminder calls
regarding vehicle service were within scope of consent given by providing cell phone number during previous
service visits).
28
Van Patten v. Vertical Fitness Grp., 847 F.3d 1037 (9th Cir. 2017).
29
See, e.g., N.L. v. Credit One Bank, 960 F.3d 1164 (9th Cir. 2020); Breslow v. Wells Fargo Bank, 755 F.3d
1265 (11th Cir. 2014); Osorio v. State Farm Bank, 746 F.3d 1242 (11th Cir. 2014); Soppet v. Enhanced
Recovery Co., L.L.C., 679 F.3d 637 (7th Cir. 2012); Thompson v. Branch Banking & Tr. Co., 2020 WL
3316092 (S.D. Fla. May 1, 2020).
9
The Commission has implemented the Reassigned Number Database specifically to address
that risk of liability, as well as to limit the number of unwanted robocalls:
30
The FCC's Reassigned Numbers Database (RND) is designed to prevent a consumer
from getting unwanted calls intended for someone who previously held their phone
number. Callers can use the database to determine whether a telephone number may
have been reassigned so they can avoid calling consumers who do not want to
receive the calls.
Callers that use the database can also reduce their potential Telephone Consumer
Protection Act (TCPA) liability by avoiding inadvertent calls to consumers who have
not given consent for the call.
31
The database has been fully operational since November 1, 2021. It provides a means for
callers to find out before making a call if the phone number has been reassigned. If the database
wrongly indicates that the number has not been reassigned, so long as the caller has used the
database correctly, no TCPA liability will apply for reaching the wrong party.
32
Thus, as long as
HHS’s callers make use of this simple, readily available database, they can be confident that they will
not be held liable for making calls to reassigned numbers.
IV. The content of these calls should be limited to ensure that this program is not used
to facilitate scam or illegal telemarketing calls.
The Commission should ensure that any pronouncement it makes to facilitate the calls
described by HHS cannot be used to undermine efforts to combat scam calls and illegal
telemarketing calls.
30
See https://www.fcc.gov/reassigned-numbers-database.
31
Id. The Reassigned Numbers Database can be found at www.reassigned.us.
32
In re Advanced Methods to Target and Eliminate Unlawful Robocalls, Second Report and Order, CG
Docket No. 17-59, 33 F.C.C. Rcd. 12024, at ¶ 55 (F.C.C. Dec. 13, 2018), available at
https://docs.fcc.gov/public/attachments/FCC-18-177A1.pdf (”Once the database becomes operational,
callers that wish to avail themselves of the safe harbor must demonstrate that they appropriately checked the
most recent update of the database and the database reported ‘No’ when given either the date they contacted
that consumer or the date on which the caller could be confident that the consumer could still be reached at
that number.”).
10
According to YouMail’s data, in the month of February 2022 alone, there were more than 96
million scam calls purporting to sell Marketplace health insurance or Medicare supplements.
33
These scam calls spike during open enrollment season for health insurance.
34
Pure scam calls are not the only problem. There continue to be complaints about
marketplace sellers of health insurance making automated calls without consent in violation of the
TCPA.
35
The FTC received more than 300,000 consumer complaints regarding "medical &
prescriptions" telemarketing calls from January 2020 through March 2022, more than 185,000 of
which were robocalls,
36
and it has brought multiple actions against telemarketers for illegal robocalls
relating to health insurance.
37
Even if these calls are not pure scams in the sense that they actually
have a product to sell, many likely involve fraudulent misrepresentations to sell low-quality health
insurance plans that do not comply with minimum ACA standards.
38
If the FCC issues a
33
YouMail private data supplied to NCLC relating to the top 1,000 scam callers in the month of February,
2022. See also NomoRobo, (904) 257-7997 is a Health Insurance Robocall, available at
https://www.nomorobo.com/lookup/904-257-7997. Nomorobo is a robocall-blocking company that is
tracking healthcare insurance scam calls and is sharing audio and transcripts of actual fraudulent voicemails
for consumer awareness.
34
See Federal Commc’ns Comm’n, Health Care Scams Tend to Spike During Open Enrollment (updated
Nov. 26, 2021), available at https://www.fcc.gov/health-care-scams-tend-spike-during-open-enrollment.
35
See, e.g., Bilek v. Federal Ins. Co., 8 F.4th 581 (7th Cir. 2021) (lead generators initiated robocalls that
solicited defendant’s health insurance); Hossfeld v. Am. Fin. Sec. Life Ins. Co., 544 F. Supp. 3d 1323, 1332
(S.D. Fla. June 16, 2021) (allegation that defendant authorized telemarketers to make automated calls selling
health insurance without required consent sufficient to withstand motion to dismiss).
36
See Federal Trade Comm’n, National Do Not Call Registry, All DNC Complaints, January 2020 to March
2022 (accessed May 11, 2022), available
at https://public.tableau.com/shared/CXXQGZD44?:display_count=n&:origin=viz_share_link. Hover over
"Medical and prescriptions" to see the robocall/live caller breakdown.
37
See, e.g., Federal Trade Comm’n v. Simple Health Plans, L.L.C., 379 F. Supp. 3d 1346, 1362–1364 (S.D. Fla.
2019) (defendants falsely led consumers to believe that health indemnity plans were ACA-compliant health
insurance; verification process did not change net impression created by telemarketers’ misrepresentation),
aff’d, 801 Fed. Appx. 685 (11th Cir. 2020); Federal Trade Comm’n v. Partners In Health Care Ass’n, Inc., 189
F. Supp. 3d 1356 (S.D. Fla. 2016) (false or misleading representations that a medical discount card was
insurance).
38
See Federal Trade Comm’n v. Simple Health Plans, L.L.C., 379 F. Supp. 3d 1346, 1362–1363 (S.D. Fla.
2019) (defendants falsely led consumers to believe that health indemnity plans were ACA-compliant health
11
pronouncement approving HHS’s calls, it should craft it carefully and narrowly, applying it only to
calls from the government entities and contractors mentioned, made only to enrollees at numbers
provided by the enrollees, and only for the purpose of re-enrollment in the existing plan or a
replacement program.
Another concern is the possibility that these calls will undermine long-standing
pronouncements from the FTC and others that “the government does not call” people and ask for
money or personal information:
If you get a call like this [one purporting to be from the Social Security Administration, the
IRS, or Medicare that asks for money or personal information], hang up the phone. It’s a
scammer.
Because government agencies won’t call, email, or text you and ask for money or
personal information. Only a scammer will do that.
39
Even if the proposed calls and texts do not themselves ask for money or personal information, it
appears likely that they will prompt enrollees to call a number whereupon they will be asked to
provide personal information and possibly make payment arrangements as well. The FCC and HHS
should expect that scammers and telemarketers will spoof these calls, and these agencies should take
measures to ensure that telephone service providers block these spoofed calls from reaching
subscribers. HHS’s letter does not identify any steps it plans to take to reduce this risk. Before
issuing any pronouncement approving these calls, the Commission should make sure that HHS has
developed a careful plan to ensure that the calls do not provide cover for dangerous and illegal calls
from scammers and telemarketers. The failure to ensure that HHS’s calls are not used to mask
and facilitate more health-care related scam calls will harm the very people that HHS seeks
to assist.
insurance), aff’d, 801 Fed. Appx. 685 (11th Cir. 2020).
39
Federal Trade Comm’n, Consumer Advice, How to Avoid a Government Impersonator Scam (May 2021),
available at https://consumer.ftc.gov/articles/how-avoid-government-impersonator-scam (emphasis added).
12
V. The calls authorized by HHS should be carefully controlled.
If the Commission issues a pronouncement approving the calls that HHS seeks to make, it
should make clear the importance of limiting and controlling the calls. There are several different
concerns.
First, the Commission should point out that the calls must strictly avoid telemarketing. If an
autodialed or prerecorded call is considered to constitute telemarketing, the caller must have the
called party’s prior express written consent.
40
“Prior express written consent” is a defined term,
requiring specific disclosures and the called party’s signature.
41
While many of the enrollees whom
HHS wishes to call have probably given their telephone numbers as part of written enrollment
agreements, it is unlikely that those agreements meet the very specific requirements for prior express
written consent. Thus, if the calls HHS wishes to make stray into telemarketing, they will be illegal,
and callers to which the TCPA applies will be potentially subject to TCPA liability.
For a call to constitute telemarketing, it must promote the sale or rental of property, goods,
or services.
42
Calls that include solicitations to sell new insurance, unrelated to the insurance
program(s) for which the called party originally applied, are clearly promoting the sale of a product.
43
As a result, calls to sell new insurance would be telemarketing calls that should not be authorized.
(In addition, solicitations to sell new insurance would almost certainly go beyond the scope of the
40
47 C.F.R. § 64.1200(a)(2), (3).
41
47 C.F.R. § 64.1200(f)(9).
42
47 C.F.R. § 64.1200(f)(13) (formerly numbered as 64.1200(f)(12) until the regulation was amended by 86
Fed. Reg. 2562 (Jan. 13, 2021)); Smith v. Blue Shield of Cal. Life & Health Ins. Co., 228 F. Supp. 3d 1056
(C.D. Cal. 2017) (calls notifying enrollees of changes to their health insurance plans and directing them to
provider’s member services department were informational, not telemarketing, even if one of provider’s goals
was to retain customers).
43
See e.g., Sieleman v. Freedom Mortg. Corp., 2018 WL 3656159, at *7–8 (D.N.J. Aug. 2, 2018) (calls from
consumer’s mortgage lender offering refinance are telemarketing and can be made only with written consent,
even though consumer’s provision of a cell phone number on original loan application ten years earlier may
be sufficient to allow debt collection calls).
13
consent that the called party gave by providing a phone number when originally applying for
coverage. See section III of these comments.)
On the other hand, several cases have held that calls to certify enrollees in Medicaid are not
considered telemarketing.
44
The courts have also generally held that calls to assist people in
continuing existing coverage or overcoming a missed deadline—even for goods or services sold by
private entities—are not telemarketing calls.
45
The Commission should caution HHS that, in order
to fit within these rulings, it must strictly limit the proposed calls to avoid any telemarketing.
To address both the need to avoid any telemarketing in these calls and the concerns
expressed in the earlier sections of these comments, the Commission should articulate specific rules
for these calls. Such rules might include requirements that—
1. Limit the calls to encouraging the extension or reenrollment in the health insurance program
in which the called party originally enrolled or applied for, or a similar one, and prohibit
callers from selling or soliciting the sale of any other product or service.
2. Require that callers only call telephone numbers that were provided by the persons to be
called.
3. Prohibit callers from asking for payment or personal information over the telephone, to
ensure that there is a distinct difference between these calls and the 100 million scam
healthcare calls made every month.
44
Dennis v. Amerigroup Washington, Inc., 2020 WL 618472 (W.D. Wash. Feb. 10, 2020) (prerecorded calls
about benefits and recertification requirements, intended for Medicaid recipients, are not telemarketing),
amended on other issues on denial of reconsideration, 2020 WL 996856 (W.D. Wash. Mar. 2, 2020); Williams v. Nat’l
Healthcare Review, 2017 WL 4819097 (D. Nev. Oct. 25, 2017) (call from company paid by hospital to
contact patients and help them sign up for Medicaid is not telemarketing).
45
Phan v. Agoda Co. Pte. Ltd., 798 Fed. Appx. 157 (9th Cir. 2020) (text message confirming a booking is not
an advertisement or telemarketing even though it invited recipient to download an app to manage the
reservation); Aderhold v. car2go N.A., L.L.C., 668 Fed. Appx. 795 (9th Cir. 2016) (text message that provided
validation code so that user could complete online registration process he had initiated was not
telemarketing); Saunders v. Sunrun, Inc., 2020 WL 4601636 (N.D. Cal. Aug. 11, 2020) (text messages sent to
follow up on plaintiff’s call requesting a quote are not telemarketing); Wick v. Twilio Inc., 2016 WL 6460316
(W.D. Wash. Nov. 1, 2016) (text message telling consumer that his registration to receive a free sample was
incomplete is not telemarketing); Newhart v. Quicken Loans, Inc., 2016 WL 7118998 (S.D. Fla. Oct. 13,
2016) (calls in response to consumer requests, and calls to complete transactions that consumers had decided
to pursue, are not telemarketing).
14
4. Require that callers only call telephone numbers that the called party provided directly to the
caller, or another entity closely associated with the caller, in the context of the health
insurance application that is the basis for the call.
5. Require that callers properly use the Reassigned Number Database before making the calls.
6. Require that the caller ID that accompanies each call accurately reflects both the real name
of the caller and a telephone number that accepts incoming calls.
46
Additionally, HHS and
the callers should publicize information that ties the telephone numbers used to make these
calls with the health insurance program about which the calls are made.
VI. Conclusion
We agree with the importance of these calls, and we recognize that the Commission’s
existing rulings consider the prior express consent requirement to be satisfied by the called party’s
provision of a telephone number to the caller or a related party in a context related to the subject
matter of the call. We urge the Commission and HHS to facilitate these calls in a way that enables
recipients to stay enrolled in their health care plans, yet does not promote or provide cover for scam
calls or illegal telemarketing calls.
We appreciate the opportunity to provide comments on this issue.
Respectfully submitted by:
Margot Saunders
Senior Counsel
Carolyn L. Carter
Deputy Director
National Consumer Law Center
1001 Connecticut Ave., NW
Washington, D.C. 20036
On behalf of the low-income clients of the National Consumer Law Center, and Consumer
Action, Consumer Federation of America, Electronic Privacy Information Center, Florida
Justice Project, Jacksonville Legal Aid, Inc., Justice in Aging, National Association of
Consumer Advocates, National Consumers League, National Health Law Program, Public
Knowledge, and U.S. PIRG
46
This requirement goes beyond the prohibition against providing a false caller ID in the TCPA at 47 U.S.C.
§ 227(e). It requires the real name of the caller and the use of a telephone number through which the called
party can return the call.
