Recently, the Federal Communications Commission (FCC) clarified that a call made using artificial or pre-recorded voice to a residential telephone line for the SOLE purpose of identifying individuals to participate in a clinical trial is exempt from the Telephone Consumer Protection Act (TCPA) “prior express written consent” requirement, provided that:
- The call does not include any advertisement or telemarketing.
- The caller does not make more than three of these clinical trial calls to one individual in any consecutive 30-day period.
- The caller allows the individual to opt-out of receiving future calls about the clinical trial.
This clarification came in response to a petition from Acurian, Inc. (Acurian), a provider of clinical trial patient recruitment and retention solutions for life sciences. Acurian’s calls are made using a pre-recorded voice message offering introductory information about the clinical trial opportunity and about receiving a live follow-up call with a physician overseeing the trial. Acurian’s petition stated that it should be exempt from TCPA requirements because the calls it makes, even though they are pre-recorded:
- Are not made for a commercial purpose.
- Do not, and are not intended to, encourage the called party to engage in a commercial transaction.
- Are analogous to the purely research calls that the FCC has already deemed exempt.
The FCC granted Acurian’s petition, saying that it did not need to research the question of whether the calls were commercial because the communications lacked advertising, and the calls did not offer a free service part of an overall marketing campaign (which would potentially need to meet the TCPA’s “prior express written consent” requirement).
This decision suggests that the FCC is open to the use of pre-recorded calls to residential lines without first obtaining written consent, provided they offer free opportunities and do not market or sell products or services.