The Federal Communications Commission’s (FCC) Bureau of Consumer and Governmental Affairs (Bureau) has granted a Petition For Declaratory Ruling submitted in 2014 by Acurian, Inc. (Acurian) “asking the Commission to clarify that a call to a residential telephone line seeking an individual’s participation in a clinical pharmaceutical trial is not subject to the [Telephone Consumer Protection Act’s (TCPA)]… restrictions on prerecorded calls.” Acurian argued that “its calls are not made for a commercial purpose or, alternatively, do not include or introduce an advertisement or constitute telemarketing, and thus do not require the individual’s prior express written consent.”
The Bureau applied the “Commission’s existing rules and precedent …[to] clarify that an artificial or prerecorded voice message call to a residential telephone line seeking a consumer’s participation in a clinical pharmaceutical trial but not including any advertising or telemarketing is exempt from the TCPA’s prior-express-written-consent requirement as long as the caller makes no more than three such calls within any consecutive 30-day period and allows the called party to opt out of future calls” (https://docs.fcc.gov/public/attachments/DA-21-69A1.pdf).
Even assuming the calls were made for a “commercial purpose,” the Bureau founded its clarification squarely on the conclusion that the Acurian calls “do not include or introduce an advertisement or constitute telemarketing…because they do not identify property, goods, or services offered for sale by Acurian or its clients.” The ruling noted that “the sole aim of Acurian’s calls appears to be to encourage the called party to participate in an FDA-mandated clinical trial… and at no time are consumers asked to purchase any product or service, and there is nothing in the record that counters Acurian on those points.”
Further, the Bureau found that Acurian does not “couple its offer to reimburse individuals for their time participating in the trial or free participation in a trial with any other offer or marketing effort to sell anything.” Thus, the ruling concluded that the calls at issue were not an offer of “free goods and services” as part of an “overall marketing campaign” or “dual purpose” calls” for TCPA consent purposes.
In further support of its analysis, Bureau found that its clarification was consistent with FCC precedent – citing as an example the FCC’s prior conclusion that “a recruiter’s call to discuss potential employment or service in the military with a consumer is not a ‘telephone solicitation’ to the extent the called party will not be asked during or after the call to purchase, rent or invest in property, goods or services.” Further, the Bureau noted that the ruling also was consistent judicial interpretations finding that “messages seeking individuals to participate in research trials or studies are not ‘advertisements’ as defined by the” TCPA. The ruling also cited court decisions that “robocalls, text messages, or faxes that provide only information on employment opportunities do not constitute ‘advertisements’ as they are not ‘advertising the commercial availability or quality of any property, goods, or services.’”
Finally, the Bureau recognized “the importance of pharmaceutical trials, especially at a time when researchers search for therapeutics and vaccines to treat or prevent COVID-19.” However, the ruling also conceded that some may not welcome the invitation or desire to participate. To that end the Bureau noted the FCC’s recent decision to limit “calls for a commercial purpose where the calls do not include advertising or telemarketing to three calls within any consecutive 30-day period and require callers to allow consumers to opt out even before callers reach that limit.”
The Acurian ruling is effective by its terms “on release” (i.e., Janaury 15, 2021). TCPAWorld notes, however, that the FCC ruling imposing call limit and opt-out requirements included a delayed compliance deadline until 6 months after publication in the Federal Register of Office of Management and Budget approval of the new rules. The Bureau does not mention Commission sanctioned implementation delay in its Acurian clarification (https://tcpaworld.com/2020/12/30/breaking-fcc-issues-ruling-limiting-call-volumes-permitted-under-tcpa-exemptions/).
In an interesting side comment, the Bureau noted that Acurian had been sued for violating the TCPA requirements on prerecorded calls, but the case had settled. Still, the agency decided to “exercise…[its] discretion to respond to the Petition to address these calls, which we expect to be instructive for similar callers and consumers who receive such calls.” Perhaps plaintiff’s counsel as well.
As to the scope of the ruling, the Bureau expressly limited its “clarification” to the “calls that Acurian describes” and did not “address the lawfulness of any specific calls made by Acurian, which did not include in the record either transcripts or detailed descriptions of such calls.” Callers seeking to reply on this specific clarification must keep this admonition in mind.
