If your business makes calls or sends text messages using technology covered by the TCPA—such as an autodialer or an artificial or prerecorded voice—there are a few exemptions worth knowing about.
The exemptions can be helpful, but they are narrow and only apply when specific conditions are met.
What Technology Does the TCPA Regulate and How?
The TCPA, 47 U.S.C. § 227, has two main sections that set calling rules and allow consumers to sue when those rules are broken: 227(b) and 227(c). You can read more about each section here.
This article focuses primarily on 227(b), which covers calls made with an autodialer or an artificial or prerecorded voice, including AI-generated voice.
In particular, this article looks at two common 227(b) restrictions:
- You generally cannot make non-emergency calls to certain numbers, including cell phones, with an autodialer or an artificial or prerecorded voice unless the called party gave prior express consent. That consent has to be in writing if it’s a telemarketing call.
- You also generally cannot make non-emergency calls to a residential landline using an artificial or prerecorded voice unless the called party gave prior express consent. That consent has to be in writing if it’s a telemarketing call.
What are the Exemptions to Those Prohibitions?
Exemptions for the first restriction appear in 47 C.F.R. § 64.1200(a)(9). These cover a few specific categories, such as package-delivery notices, certain bank alerts, and some healthcare messages.
Exemptions for the second restriction appear in 47 C.F.R. § 64.1200(a)(3), and those exemptions apply more broadly. Below is a practical overview of both sets of exemptions.
Artificial or Prerecorded Voice Calls to Residential Telephone Numbers
Under 47 C.F.R. § 64.1200(a)(3), consent is not required for certain artificial or prerecorded voice calls to residential numbers in the following situations:
- The call is not for a commercial purpose, and no more than three such calls are made to the same number within any 30-day period.
- The call has a commercial purpose but is not telemarketing and does not include or introduce an advertisement, and no more than three such calls are made to the same number within any 30-day period.
- The call is made by or on behalf of a nonprofit organization, and no more than three such calls are made to the same number within any 30-day period.
In all three situations, the caller must also honor any opt-out requests.
Autodialed, Artificial or Prerecorded Voice Calls to Telephone Numbers Associated with Certain Services
Under the TCPA, section 47 C.F.R. § 64.1200(a)(9) includes a few narrow business-specific exemptions to the first restriction discussed above. Common examples include package delivery updates, fraud or security alerts from banks, and certain healthcare messages.
But these exemptions come with conditions: the message usually must stay focused on the exempt purpose, be free to the recipient, follow any call limits, and include an opt-out option.
The exemptions within 47 C.F.R. § 64.1200(a)(9) expressly apply to text messages. But it is an open question as to whether the two 227(b) restrictions discussed in this article even apply to text messages.
Package Delivery Updates
This is one of the easiest exemptions to understand. A package delivery company may be able to use it for a call that notifies a consumer about a package. But the exemption only applies if several conditions are met.
For example, the call must identify the delivery company, last no more than one minute, contain no telemarketing, solicitation, or advertising, and—except in limited situations—be limited to one notification call per package.
Bank Alerts
Some bank alerts—especially fraud, identity theft, and security alerts—may also be exempt. As with package delivery updates, the exemption only applies if the message meets specific requirements.
For example, the alert can be sent only to a number the customer gave the bank, it must identify the bank, and no more than three alerts about the same event can be made or sent within a three-day period.
Healthcare Messages
Certain healthcare messages can also fall within (a)(9). These include appointment and exam reminders, wellness checkups, and hospital pre-registration instructions. The exemption is meant for the kinds of healthcare communications people generally expect and often benefit from receiving quickly.
But it still has limits. For example, the message must identify the healthcare provider, and no more than one such call can be made to the same number per day or more than three per week.
The Fine Print Matters
A common mistake with these exemptions is assuming a call is automatically exempt just because it sounds informational. That is not how this works. These exemptions are conditional, which means a business can still create risk if it sends too many messages, adds promotional language, skips a required opt-out method, or goes beyond the narrow purpose the relevant exemption is meant to cover.
In short, the details matter.
Key Takeaways
For companies that need to send important operational messages using an autodialer or a prerecorded voice, these exemptions can be useful. They allow some messages that customers often want or expect to receive.
But the exemptions are narrow, so the safest approach is to match the message carefully to the exact exemption and follow the related limits, content rules, and opt-out requirements. Before relying on an exemption, it is wise to review the rule text and the latest FCC guidance.
This article is only offered for informational purposes; it is not legal advice. Please consult a qualified attorney for your specific compliance needs.
Joe Bowser
Joe Bowser is a partner at Roth Jackson. He has been practicing communications and marketing law for two decades. He advises and defends calling and SMS platform providers (like Readymode), carriers/VoIP providers, and heavy users of those services in their wide range of compliance needs. In his spare time, you can find him taking his boys to their sports, getting in a workout of his own, or catching an Arsenal match.
