Emergency Purposes Exception Under the TCPA Protects Local Government Robocalls During Public Health Crises

Introduction

Silver v. City of Albuquerque, No. 23-2058 (10th Cir. Apr. 23, 2025), arises from a putative class action in which Gerald Silver sued the City of Albuquerque for allegedly violating the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227 et seq., by sending prerecorded (“robocall”) invitations to virtual town hall meetings during the COVID‐19 pandemic. Silver claimed that these calls were made by an automatic telephone dialing system to his cell phone without his prior consent. The City moved to dismiss, arguing (1) it is not a “person” under the TCPA, and (2) even if it is, the calls fall within the TCPA’s emergency purposes exemption. The district court agreed with the second argument, dismissed Silver’s complaint, and Silver appealed. The Tenth Circuit, exercising de novo review, affirmed.

Summary of the Judgment

The Tenth Circuit held that, assuming arguendo local governments qualify as “persons” under the TCPA, the prerecorded calls at issue were exempt from liability because they were made “for emergency purposes.” Drawing on the Federal Communications Commission’s (FCC) TCPA implementing rules and past FCC decisions, the court applied a two-part inquiry—context and content—and concluded:

Context: The caller was a government official (the Mayor’s office), satisfying the requirement that emergency calls originate from hospitals, health‐care providers, state or local health officials, or persons acting on their behalf.
Content: The calls were purely informational, announcing that town halls would be virtual, a mitigation measure necessitated by COVID-19 social-distancing requirements.

Because virtual town halls were themselves a public‐health mitigation measure, informing residents about them was directly related to the health and safety emergency. The court thus affirmed the dismissal.

Analysis

Precedents Cited

FCC COVID-19 Waiver Order (2020): In re Rules & Reguls. Implementing the TCPA, 35 FCC Rcd 2840 (2020), which recognized that calls about COVID-19 mitigation measures (including social-distancing information) qualify as “emergency purposes.”
FCC 1992 Emergency Interpretation: In re TCPA of 1991, 7 FCC Rcd 2736 (1992), defining “emergency” to include public‐interest announcements on health or safety, whether anticipated or not.
FCC Blackboard Order (2016): 31 FCC Rcd 9054, clarifying that calls affecting health and safety concerns—so long as informational and directly related to an imminent risk—are exempt.
Gabertan v. Walmart, Inc. (W.D. Wash. 2021): Held that pharmacy texts about contactless prescriptions during COVID-19 fell within the emergency exemption because they informed customers about mitigation measures.
McAuliffe v. Vail Corp. (10th Cir. 2023): Noted the “unprecedented challenges” posed by COVID-19, illustrating the context in which courts must apply common sense to public-health responses.

Legal Reasoning

The court employed a two-step framework drawn from FCC authority:

Context Prong: Was the caller a qualified entity—i.e., a government official or its agent? Yes. The City’s Mayor’s office made the calls.
Content Prong: Were the calls (a) informational, (b) made necessary by the emergency, and (c) directly related to the emergency’s health or safety risks? Yes. The recordings merely announced that town halls would be virtual (“informational”), a change “made necessary” by social‐distancing rules, and directly tied to the risk of in-person gatherings during the pandemic.

The court rejected Silver’s invitations to require explicit mention of “COVID-19” in the calls or a more tailored selection of recipients. It held that the TCPA does not demand the “least intrusive means” or exact terminology; rather, what matters is that the emergency—here, the pandemic—was bona fide and relevant to the called parties, namely all Albuquerque residents.

Impact

This decision clarifies and reinforces several important points for future TCPA litigation:

Local and state governments may use automated or prerecorded calls to communicate health and safety directives during declared emergencies without risking TCPA liability.
The FCC’s emergency purposes exemption is broad: it covers mitigation measures themselves (e.g., virtual meeting platforms) even if the call’s content covers ordinary topics.
Requestors of relief under the TCPA must anticipate robust “emergency purpose” defenses when suing over public‐interest communications made during crises.
Although the court did not decide whether municipalities are “persons” under the TCPA, it laid groundwork for district courts to resolve that threshold issue in future cases.

Complex Concepts Simplified

TCPA: A federal law (47 U.S.C. § 227) that prohibits unwanted automated or prerecorded calls to cell phones, subject to certain exceptions.
Emergency Purposes Exception: A carve-out in the TCPA (47 C.F.R. § 64.1200(f)(4)) and FCC orders allowing informational calls “made necessary in any situation affecting the health and safety of consumers.”
Mitigation Measure: An action taken to reduce the harm of a crisis. Here, shifting town halls online was itself a mitigation measure to prevent virus spread.
Common Sense Inquiry: Courts may rely on real‐world context—e.g., the dramatic shift to virtual interaction during COVID-19—to assess whether calls qualify as emergency communications.

Conclusion

Silver v. City of Albuquerque establishes that prerecorded calls by a local government offering purely informational content about a public-health mitigation measure fall squarely within the TCPA’s emergency purposes exception. By affirming the district court’s dismissal, the Tenth Circuit reinforced the principle that, in times of crisis, the government retains broad authority to communicate essential health and safety information via automated channels without facing TCPA penalties. This ruling will guide future disputes over emergency communications and underscore the TCPA’s balanced approach to consumer privacy and public well-being.