By Ian Ross and Jorge Perez Santiago
(Originally featured by the American Health Law Association at: AHLA – What Health Care Providers Should Know About the Telephone Consumer Protection Act (americanhealthlaw.org))
ABSTRACT: Thousands of companies are sued every year under the Telephone Consumer Protection Act of 1991 (the TCPA).1 The attorneys who bring these lawsuits target every industry, but in recent years have focused much of their attention on health care companies and medical providers who communicate with their patients via text message and prerecorded messages. Many courts have held that certain provisions in the TCPA and its implementing regulations are subject to interpretation, and plaintiffs’ attorneys have taken advantage of this uncertainty by filing lawsuits first and worrying about the implications later. Although appellate courts—and even the United States Supreme Court—have stepped in to clarify the scope of the TCPA, it is important for health care professionals to understand the dangers posed by these lawsuits and to make sure that their compliance program and communications with their patients follow the TCPA and applicable regulations. This article will outline the basic structure of the TCPA and explain (1) what it prohibits, (2) the exemptions to the TCPA that have been enacted to protect health care professionals who need to communicate with their patients, and (3) how those exemptions have been interpreted by courts and why those interpretations continue to evolve.
* This article is not intended to be comprehensive. The law in this area is ever-changing and health care professionals should consult with their attorneys when they are considering using new technologies or software to contact their patients to ensure the software or technology is not subject to the TCPA and its implementing regulations following the United States Supreme Court’s decision in Facebook, Inc. v. Duguid,2 or ensure the content of the call or message meets an exemption or exception to the proscribed conduct. It is the authors’ hope that this article will provide the reader with the fundamentals about how to avoid common pitfalls in the TCPA.
Ian M. Ross & Jorge Perez Santiago, What Health Care Providers Should Know About the Telephone Consumer Protection Act, J. Health and Life Sci. L., July 2021, at 29. © American Health Law Association, www.americanhealthlaw.org/journal. All rights reserved.
The Telephone Consumer Protection Act
The TCPA, Its Prohibitions, and Its Exemptions
Exemptions for Health Care-Related Messages Under the TCPA
The FCC Healthcare Exemption
The Emergency Purposes Exemption
Understanding TCPA Prohibitions If An Exemption Does Not Apply
Understanding the Equipment Used: APRV and ATDS Technology
Understanding the Purpose of the Call: Informational and Telemarketing Calls to Cellphone Subscribers
Understanding Consent: Prior Express Consent and Prior Express Written Consent
Health care companies, medical professionals, and pharmacies have increasingly relied on technology-assisted communication to communicate with patients and consumers regarding their health care services, including availability of vaccinations and prescriptions, appointment reminders, follow-ups, and debt collection. The importance of the communications has only increased during the COVID-19 pandemic, as demands for remote services and telehealth have increased. These communications may expose health care professionals to costly litigation and class action liability under the Telephone Consumer Protection Act of 1991.3 Plaintiffs’ attorneys file TCPA lawsuits by the thousands, taking advantage of well-meaning communications that may trigger technical consent requirements or fall outside the express TCPA exemptions for health care messages.4
The statutory damages available under the TCPA can be staggering. Damages can amount to the actual monetary loss or $500 for each call made in violation of the TCPA and, if the violation is found to be willful or knowing, then courts may treble the damages to $1,500 per violation.5 When lawsuits are brought as putative class actions, plaintiffs may seek to recover damages for thousands of calls made by the same company (or companies) in a single lawsuit. Some TCPA lawsuits have resulted in jury verdicts or settlements for tens of millions of dollars.
Given the substantial dangers of liability posed by the TCPA, it is increasingly important for health care professionals to understand its pitfalls and the constantly evolving interpretation of its prohibitions. This article is no substitute for individually tailored compliance procedures and protocols for health care professionals who communicate with their patients through proprietary and cloud-based services. Nonetheless, our hope is to provide a basic background on the TCPA, (1) outlining its prohibitions and the regulations enacted by the Federal Communication Commission (FCC), (2) explaining the health care-related exemptions that have been enacted under the TCPA, and (3) providing some basic guidance on how those exemptions have been interpreted by courts.
THE TCPA, ITS PROHIBITIONS, AND ITS EXEMPTIONS
The TCPA regulates the types of calls, prerecorded messages, unsolicited faxes, and text messages6 that are made to residential and cell phone numbers. This article focuses on two of the prohibitions under the TCPA that have led to many of the lawsuits brought against health care companies and providers.
First, the TCPA makes it unlawful “to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using an automatic telephone dialing system or an artificial or prerecorded voice . . . to any telephone number assigned to a . . . cellular telephone service . . . .”7 With respect to the concept of “prior express consent,” it is important to know that some form of express consent is required to use any type of automatic telephone dialing system (ATDS) or an artificial or prerecorded voice (APRV) when making a call for a non-emergency purpose, even if that call is merely informational. For a telemarketing call or advertisement, that form of consent must satisfy specific regulatory requirements and must be in writing (called “prior express written consent”).
Second, it is unlawful to make calls to a residential line using an APVR unless the called party has given prior express written consent to be called using an APVR.8 These calls to residential lines may be made without prior express written consent if the call (i) is for emergency purposes, (ii) is not made for a commercial purpose, (iii) is made for a commercial purpose but does not include or introduce an advertisement or constitute “telemarketing,” (iv) is made by or on behalf of a tax-exempt nonprofit organization, or (v) delivers a “health care” message for a covered entity or business associate as defined by the HIPAA Privacy Rule. This article will discuss the Federal Communications Commission’s (FCC) December 30, 2020 Report and Order and how it affects this prohibition and implementing regulation,9 and this health care exemption and other health care exemptions under the TCPA.
The regulations enacted under the TCPA contain other limitations on telephone solicitations not relevant here; for example, telephone solicitations before 8 a.m. or after 9 p.m., and solicitations made to telephone subscribers registered on the national do-not-call registry, are both prohibited under these regulations.10 For most health care professionals, though, an analysis of whether one’s communications with a client may be subject to the TCPA will turn on whether (1) the calls are made to a cellular telephone or a residential line using an ATDS (or APRV), (2) the content of the call constitutes “telemarketing,” and (3) the call recipient has provided the requisite express consent to receive the call. Thus, it is important to understand the equipment used to communicate with clients and patients, the purpose of the call, and the required level of prior consent necessary to make those calls.
It would ordinarily be most helpful to first lay out the TCPA prohibitions and implementing regulations before addressing any potential health care exemptions or exceptions. But, for the reader’s benefit, we will set aside some of the granular technicalities of the TCPA prohibitions and dive right into the key exemptions or exceptions applicable to many health care-related communications under the TCPA and its implementing regulations. Not all messages or calls from health care professionals are exempt from the TCPA prohibitions, and because the law applying these exemptions is still developing, unwary health care professionals can still find themselves on the wrong side of a costly TCPA lawsuit where the applicability of an exemption may involve a question of fact that requires months or even years to resolve.
EXEMPTIONS FOR HEALTH CARE-RELATED MESSAGES UNDER THE TCPA
The key exemptions that may protect health care-related messages under the TCPA are the FCC Healthcare Exemption and the Emergency Purposes Exemption. Both are discussed in detail below.
The FCC Healthcare Exemption
The FCC has adopted a “Healthcare Exception” or “Healthcare Exemption” that exempts calls and text messages that would be protected under the Health Insurance Portability and Accountability Act (HIPAA) guidelines from the TCPA’s prohibitions against unsolicited calls and messages.11 As for calls to wireless cell numbers, the FCC’s regulation states as follows:
(a) No person or entity may . . . (2) Initiate, or cause to be initiated, any telephone call that includes or introduces an advertisement or constitutes telemarketing, using an [ATDS] or an artificial or prerecorded voice, to [cell phones], other than a call made with the prior express written consent of the called party . . . or a call that delivers a “health care” message made by, or on behalf of, a “covered entity” or its “business associate,” as those terms are defined in the HIPAA Privacy Rule, 45 CFR 160.103.12
In defining “health care” for the purposes of this exception, the FCC regulations look to HIPAA.13 HIPAA broadly defines “health care” to include “care, services, or supplies related to the health of an individual.”14 It also “includes, but is not limited to :
Preventive, diagnostics, therapeutic, rehabilitative, maintenance, or palliative care, and counseling, service, assessment, or procedure with respect to the physical or mental condition, or functional status, of an individual or that affects the structure or function of the body; and
Sale or dispensing of a drug, device, equipment, or other item in accordance with a prescription.15
With these services and treatments in mind, HIPAA exempts from its definition of “marketing” communications that are made “[t]o provide refill reminders or . . . communicate about a drug . . . that is currently being prescribed for the individual”—but only if any financial remuneration received by the covered entity to make the communication is “reasonable related to the covered entity’s cost of making the communication”—and “[f ]or treatment of an individual by a health care provider . . . or to direct or recommend alternative treatments” to the individual, except where the covered entity receives financial remuneration in exchange for making the communication.16
The FCC has held that communications about medical services such “immunization reminders, health screening reminders, medical supply renewal requests, and generic drug migration recommendations” are not marketing “inducements to purchase goods or services” and thus, are not subject to the TCPA as explained further below.17 Such calls, even if perceived to be encouraging medical services, “do not tread heavily upon the consumer privacy interests because these calls are placed by the consumer’s health care provider to the consumer and concern the consumers’ health.”18 Likewise, messages that “direct or recommend alternative treatment” to a consumer are not “telemarketing” communications.19, 20
Not only do the FCC telemarketing guidelines make clear that health screening reminders and similar messages fall outside the TCPA but also, HIPAA itself states that such health care communications are not “marketing.”21 In fact, HIPAA provides several exceptions to the definition of “marketing” because the treatment of individuals and related activities often necessarily involves promotion of health care products and services. As a result, covered entities are permitted to make the following communications without authorization as either health care operations communications or treatment communications, except where the covered entity receives financial remuneration in exchange for making the communication:
(A.) communications made “[f ]or treatment of an individual by a health care provider, including case management or care coordination for the individual, or to direct or recommend alternative treatments, therapies, health care providers, or settings of care to the individual;”
(B.) communications “[t]o describe a health-related product or service (or payment for such product or service) that is provided by, or included in a plan of benefits of, the covered entity making the communication, including communications about: the entities participating in a health care provider network or health plan network; replacement of, or enhancements to, a health plan; and health-related products or services available only to a health plan enrollee that add value to, but are not part of, a plan of benefits;” and
(C.) communications “[f ]or case management or care coordination, contacting of individuals with information about treatment alternatives, and related functions to the extent these activities do not fall within the definition of treatment.”22, 23
As noted supra, the FCC has specifically found that health screening reminders are not unsolicited advertisements.24 Indeed, the FCC has noted that such communications “serve a public interest purpose: to ensure continued consumer access to health care-related information.”25 Courts applying this guidance have repeatedly ruled that reminders regarding medical services and health-related screenings are not advertisements and do not require prior express written consent.26
The district court in Jackson v. Safeway, Inc. specifically rejected the argument that a health care message, simply because it could be read as advertising or marketing the services of a company, fell outside the TCPA’s health care exemption. In that case—another putative class action brought under the TCPA—a pharmacy placed a prerecorded call to plaintiff ’s cellphone that stated:
Hello, this is a flu shot reminder call from your Safeway Pharmacy. Because you previously received a flu shot from Safeway you already know the best way to prevent the flu is by being vaccinated each year. If you haven’t already received your flu shot—now is the time! The CDC is recommending that everyone over the age of 6 months receive their flu shot this flu season. Flu Shots are now available from your Safeway community Pharmacists, no appointment necessary, while stocks last. To opt-out of future reminders, please call 866-284-6198. Thank you, goodbye.
The court granted summary judgment for the defendant, finding that it was clear that the “flu shot calls are ‘health care’ messages because they relate to the ‘care, services, or supplies related to the health of an individual.’”27
Importantly, however, the December 30, 2020 FCC Order implementing section 8 of the Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED) Act limited the call volumes permitted under this and other commonly-used exemptions to residential lines.28 Specifically, HIPAA-related calls to a residence are limited to one APRV call per day up to a maximum of three per week, and callers must now allow recipients to opt out of such calls using the automated opt-out mechanisms described in other FCC rules and regulations, such as an automated interactive voice or key-press operated opt-out mechanism.29
The Emergency Purposes Exemption
The TCPA expressly exempts calls “made for emergency purposes.”30 The legislative history of the TCPA shows that Congress intended “emergency purposes” to be interpreted “broadly rather than narrowly.”31 Congress delegated authority to the FCC to define “emergency purposes.”32
Consistent with that Congressional mandate, the FCC’s broad definition of “emergency purposes” includes “health” and “safety” messages and is not limited to sudden catastrophic events. Instead, “[t]he term ‘emergency purposes’ means calls made necessary in any situation affecting the health and safety of consumers.”33 The FCC restricted this exemption to “calls for which there is exigency and that have a healthcare treatment purpose, specifically: appointment and exam confirmations and reminders, wellness checkups, hospital pre-registration instructions, pre-operative instructions, lab results, post-discharge follow-up intended to prevent readmission, prescription notifications, and home healthcare instructions.”34
Consistent with Congressional intent, courts have applied this exemption broadly. For example, in Roberts v. Medco Health Sols., Inc.,35 the court granted summary judgment to two pharmacy benefit managers, finding that their prerecorded calls advising a prescription was ready to be picked up were permissible emergency purpose calls that fell outside the TCPA.36 The court observed that “many healthcare calls fall within both the emergency purposes exception and the healthcare exemption. For those that do not fall within the healthcare exemption, the FCC opined that parties are free to rely on the emergency purposes exception as appropriate.”37 The court reasoned that “a patient’s ability to timely receive a prescribed medicine is critical in preventing a major health emergency” and therefore, the calls were emergency purpose calls “within the ambit of ‘calls made necessary in any situation affecting the health and safety of consumers.’”38
On March 20, 2020, the FCC published a Declaratory Ruling that confirms the COVID-19 pandemic is an “emergency” that qualifies for this emergency purposes exemption. However, it is not an expansive free-for-all to send health care messages while the pandemic persists and may not have accomplished much more than what was already accomplished by the Healthcare Exemption.39
The COVID-19 exception applies only to calls and texts that are (1) made by a hospital or health care provider, and (2) solely informational, necessary because of the COVID-19 outbreak, and directly related to threat or safety arising out of the COVID-19 outbreak.40 In fact, the COVID-19 Ruling highlighted examples of inappropriate uses of the emergency purposes exception for COVID-19, such as “calls that contain advertising or telemarketing of services” like “advertising a commercial grocery delivery service, or selling or promoting health insurance, cleaning services, or home test kits.”41 Debt collection calls are also specifically mentioned as an inappropriate use of the COVID-19 emergency exception.42 In short, many, if not all of the calls and messages covered by the COVID-19 Ruling were already covered by the Healthcare Exemption.
The Western District of Washington recently applied the COVID-19 exception and is instructive.43 There, Walmart Pharmacy sent the following text message to its customer: “WalmartRx – Are you 60+, high-risk, self-quarantining, or have COVID-19 symptoms? Use curbside pickup or have your Rx mailed. More info https://bit.ly/wmpharm.”44 Emphasizing Walmart’s inclusion of a link to the Walmart Pharmacy website, the plaintiff argued that the purpose of this text message was to promote Walmart’s goods and services, and because Walmart did not have his prior express written consent, the text message violated the TCPA. The court disagreed. It acknowledged the emergency purpose exception “is to be interpreted broadly,” and the FCC’s COVID-19 declaratory ruling “specifically held that health care providers like the Walmart Pharmacy can ‘communicate information about the novel coronavirus as well as mitigation measures without violating federal law . . . .’ Curbside pick-up and mailing prescriptions—contactless access to prescriptions as part of an effort to mitigate the pandemic’s health risks—are facially, squarely within the emergency exception.”45 Thus, the court found Walmart’s text message did not violate the TCPA and granted Walmart’s motion to dismiss because the message’s “sole purpose was to inform [Walmart’s] customer about the coronavirus and available mitigation efforts (stay at home, social distancing) espoused by federal and state health authorities.”46 The inclusion of a link to the Walmart Pharmacy website, without more, “does not render a message advertising or telemarketing.”47
UNDERSTANDING TCPA PROHIBITIONS IF AN EXEMPTION DOES NOT APPLY
Understanding the type of equipment being used, the purpose of the call, and whether there was consent to receiving the call are all important factors that must be taken into consideration when determining TCPA compliance. These factors are explained in greater detail below.
Understanding the Equipment Used: APRV and ATDS Technology
Many of the lawsuits brought against health care professionals under the TCPA may turn on whether an APRV or ATDS was used in connection with the call. Determining whether a call is made using an APRV is fairly straightforward: calls made with an audio playback of a prerecorded voice or message will likely fall within the APRV prohibitions. Far more complicated is the determination of whether the equipment used to place calls or send text messages constitutes an ATDS.
ATDS is defined as “equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.”48 The question of “capacity” has generated a substantial amount of litigation over the years, but the debate more recently has been over whether the phrase “using a random or sequential number generator” applies only to the equipment that “produces” telephone numbers to be called, or to any equipment that “stores” or “produces” those numbers. This argument has been litigated throughout the country in hundreds of courts. In fact, this question generated such debate that the United States Supreme Court weighed in on the interpretation of ATDS earlier this year to resolve a split of opinion across the country and among several of the federal appellate courts.49 The Supreme Court held that to qualify as an ATDS under the TCPA, a device must have the capacity either to store a telephone number using a random or sequential number generator, or to produce a telephone number using a random or sequential number generator.50
Many believed the Supreme Court’s narrow interpretation of ATDS was poised to significantly weaken the scope of the TCPA because most of the commercial and cloud-based services used to call and message consumers do not allow number generation, and thus are not subject to the TCPA. However, as of this writing, plaintiffs have continued litigating whether certain commercial and cloud-based messaging services constitute an ATDS with mixed success.51 Thus, it appears that in practice, the TCPA and the threat of TCPA lawsuits will remain a powerful weapon to curtail “unwanted” calls and messages to consumers.
Understanding the Purpose of the Call: Informational and Telemarketing Calls to Cellphone Subscribers
The TCPA requires different forms of consent depending on whether the call at issue is made for telemarketing or advertising purpose. To determine whether a called party has consented to receive a call, the first question is whether the call was made for a telemarketing or advertising purpose. Only after that determination is made can a company answer the second question—did the called party consent to receive the call?52
The TCPA defines both “advertisement” and “telemarketing.” “Advertisement” means “any material advertising the commercial availability or quality of any property, goods, or services.”53 “Telemarketing” means the “initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person.”54 For a message to constitute telemarketing or advertising under the TCPA, it must contain a “clear, unequivocal implication of advertising.”55, 56
Implicit in the FCC’s focus on the advertising of property, goods, or services is the fact that the TCPA is intended to protect consumers from unwanted solicitations. Courts around the country have routinely dismissed TCPA claims where the disputed message was not intended to encourage a future commercial transaction and was instead an informational or non-transactional message. For example, courts have found that messages offering job training or similar opportunities are not telemarketing. In Friedman v. Torchmark Corp., a district court dismissed a TCPA claim where the prerecorded message sent to the plaintiff was an invitation to attend a recruiting webinar to learn about defendant’s insurance products and services.57 The district court found that the messages were “not intended to encourage Plaintiff to engage in future commercial transactions with Defendant,” but instead “were intended to inform Plaintiff of the opportunity to enter into an independent contractor position with Defendant . . . .”58, 59 Likewise, in Salmon v. CRST Expedited, Inc., the court found that messages from a trucking company promoting a free driving class in connection with a job opportunity was not telemarketing because recipients of the call were not “encouraged to purchase a service from [defendant].” 60, 61
Courts have also found that informational notifications sent to existing customers are not telemarketing. For example, in Smith v. Blue Shield of Cal. Life & Health Ins. Co.,62 California Physicians’ Service, d/b/a Blue Shield of California’s (Blue Shield) called existing insureds using an automated prerecorded message regarding written notices of renewal of insurance Blue Shield mailed to the insureds so the insureds would be aware of changes to their insurance and could opt out to select different coverage and/or a different insurance provider.63 The prerecorded messages also directed insureds to visit Blue Shield’s website. The court held that an informational call referencing Blue Shield’s website was “too attenuated to give rise to a clear, unequivocal implication of advertising.”64
Messages informing individuals of research studies, seeking participation in health information collection efforts, or identifying available health-related courses or healthy living suggestions have also been found to be informational messages. In Murphy v. DCI Biologicals Orlando, LLC,65 a plasma collection center sent text messages to a previous blood donor offering to pay him money to donate blood. The court dismissed the TCPA claim because the messages offered “an opportunity for the plaintiff to earn money” and thus were not telemarketing.66, 67 And in Reese v. Anthem, Inc.,68 the court found that text messages from the American Heart Association about cardiopulmonary resuscitation, a website to find CPR courses and other healthy living tips, were not telemarketing.
Courts have even found that fax messages containing information about a drug’s reclassification and up-to-date information on the drug are not telemarketing where the message does not notify the recipient of where or how the drug is available.69
There are other examples of these types of informational messages,70 and the examples above are not intended to be comprehensive. As reflected in the discussion above, many of these cases turn on fact-specific determinations relating to the content and purpose of the message. Indeed, plaintiffs often argue that a non-commercial informational message has a dual telemarketing purpose and thus required prior express written consent,71, 72 but this brief summary of the cases also reflects the fact that the purpose of a call or text message is a heavily-litigated issue under the TCPA.
Understanding Consent: Prior Express Consent and Prior Express Written Consent
Prior Express Consent for Non-Telemarketing Calls
For non-telemarketing calls to wireless telephone numbers,73 the TCPA and its supporting regulations provide that prior “express consent” generally exists where (i) the customer knowingly provided his/her mobile number to the caller, and (ii) the non-telemarketing call relates directly to the same account, service, or transaction for which the customer knowingly gave the number.74 Courts interpreting the TCPA have consistently held “if a person know requested the contact by providing the caller with their telephone number for use in normal business communications.’”75 The scope of the consent provided will be based on the reasons why a telephone number was provided by the called party, and will be construed based on the facts of each situation.76
Importantly, FCC guidance makes clear that whether a called party gave prior express consent depends on the permission granted, not the manner in which the number was obtained.77 Accordingly, “a party that receives an individual’s phone number indirectly may nevertheless have consent to call that individual.”78 This may even include situations wherein a consumer publicly lists their number knowing it “could be accessed by anyone with an Internet connection.”79
Prior Express Written Consent for Telemarketing Calls
FCC regulations define “prior express written consent” and provide specific standards for the “agreement” required to qualify for consent to receive telemarketing calls on wireless or residential telephone lines. Specifically, these regulations require the called party to consent through an agreement that: (i) states that the consent is from the person called to receive telemarketing calls using an ATDS or APRV for a specific number from a specific marketer; (ii) acknowledges that the consent is not required (directly or indirectly) as a condition of purchasing any goods/services; and (iii) provides for a signature by the person called.80 Moreover, the disclosures must be clear and conspicuous, which is defined as “notice that would be apparent to the reasonable consumer, separate and distinguishable from the advertising copy or other disclosures.”81 Proving prior express written consent is thus often a more difficult exercise than proving prior express consent, particularly when prior express written consent is obtained through a website.
Because most TCPA disclosures and agreements are viewed and executed online on individuals’ telephones, tablets, or computers, the plaintiff ’s “signature” confirming acknowledgement of the disclosures and consent to be called using an ATDS may be in electronic or digital form. Plaintiffs’ attorneys sometimes challenge the sufficiency or authenticity of the plaintiff ’s signature under the E-SIGN Act or other applicable state or federal law.82 In addition, they may argue that the disclosures in the online written agreement were not clear and conspicuous. That is, they were not apparent because they were not separate and distinguishable from other disclosures.83
Plaintiff attorneys bringing claims under the TCPA will likely argue that website disclosures or efforts to obtain consent under the TCPA do not demonstrate actual consent to receive telemarketing messages through an ATDS or APRV.87 Ultimately, though, companies must be mindful that consumers may revoke their consent at any time.
Even after years of litigation and thousands of cases, there is substantial uncertainty in how the TCPA is interpreted and when it applies to calls, text messages, and facsimiles. Health care professionals and companies that use software, cloud-based equipment, or automated messaging services to contact their patients need to maintain and update their compliance programs and consult with counsel as needed to understand the developing law in this area. Considerations should include: (1) the recipients who will receive the messages and how their contact information was obtained, (2) the purpose and content of the message and whether that content may trigger the TCPA’s telemarketing prohibitions, (3) the consent provided by the call recipients and the form in which that consent was provided, and (4) whether an exemption to the TCPA may exist if the message is health care-related or made for emergency purposes. As health care professionals look for new and innovative ways to interact with their customers, they need to take care that their communication efforts, critical and important as they may be, do not run afoul of the TCPA.
JORGE A. PEREZ SANTIAGO is a commercial litigator at Stumphauzer Foslid Sloman Ross & Kolaya, PLLC. He advises and defends national manufacturers, retailers, telecommunications, and health care companies in consumer class actions, commercial disputes, and government investigations. As the son of a physician, Jorge has a special interest in advising and representing health care companies and professionals. Contact Jorge via email at firstname.lastname@example.org.
1 Telephone Consumer Protection Act of 1991, 47 U.S.C § 227 (2021) [hereinafter TCPA].
2 Facebook, Inc. v. Duguid, 141 S. Ct. 1163, 1170 (U.S. 2021).
4 There were 3,302 TCPA cases filed in 2020, and 47.4% of TCPA claims filed in December 2020 were putative class actions. See WebRecon Stats for Dec 2020 and Year in Review, WebRecon LLC ( Jan. 26, 2021), https:// webrecon.com/webrecon-stats-for-dec-2020-and-year-in-review/. These cases are filed in both federal court and state court. Indeed, as federal law has developed favorable to protect businesses in some jurisdictions (such as Florida), plaintiffs have increasingly looked to state court to file TCPA cases. See Eric J. Troutman, The Rise and Fall of TCPA Suits in the Sunshine State: How the Eleventh Circuit Court of Appeal Created and Destroyed a Cottage Litigation Industry in Florida (Feb. 7, 2020), https://tcpaworld.com/2020/02/07/the-rise-and-fall-of-tcpa-suits-in-the-sunshine-state-how-the-eleventh-circuit-court-of-appeal-created-and-destroyed-a-cottage-litigation-industry-in-florida/; Drazen v. Godaddy, No. 1:19-00563-KD-B (S.D. Ala. Dec. 23, 2020) (recognizing recent Eleventh Circuit decisions have “impact[ed] the viability of TCPA cases” and the “evolving landscape of TCPA cases . . . have not been favorable to plaintiffs”).
5 TCPA § 227(b)(3).
6 Although the TCPA uses the term “calls,” its prohibitions have been interpreted by most courts to cover text messages. See, e.g., Gager v. Dell Fin. Servs., LLC, 727 F.3d 265, 269 n.2 (3d Cir. 2013); Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 952 (9th Cir. 2009).
7 TCPA § 227(b)(1)(A)(iii) (emphasis added).
8 Id. § 227(b)(1)(B); see also 47 C.F.R. § 64.1200(a)(3) (2021).
9 See In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02-278 (Dec. 30, 2020), https://docs.fcc.gov/public/attachments/FCC-20-186A1.pdf [hereinafter Dec. 30, 2020 FCC Order].
10 See generally 47 C.F.R. § 64.1200(c) (listing other prohibitions).
11 In the Matter of Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, 27 F.C.C. Rcd. 1830, 1856, ¶ 65 (2012) [hereinafter 2012 FCC Order]; Telephone Consumer Protection Act of 1991, 77 Fed. Reg. 34233, ¶¶ 40–48 ( June 11, 2012) [hereinafter FCC Final Rule].
12 47 C.F.R. § 64.1200(a)(2) (2021) (emphasis added).
13 See id. (“as those terms are defined in the HIPAA Privacy Rule, 45 C.F.R. 160.103.”).
14 45 C.F.R. § 160.103.
16 Id. § 164.501(2)(i), (ii)(A).
17 2012 FCC Order, 27 FCC Rcd. at 1855 ¶ 63.
19 45 C.F.R. § 164.501(2)(ii)(A); see Bailey v. CVS Pharm., Inc., No. 17-cv-11482 (D.N.J. Aug. 14, 2018) (dismissing claim under TCPA’s Healthcare Exemption); Latner v. Mount Sinai Health Sys., Inc., No. 16 Civ. 683 (AKH) (S.D.N.Y. Dec. 14, 2016) (judgment on the pleadings against plaintiff where message reminding the plaintiff to get a flu shot was subject to the Healthcare Exemption); Zani v. Rite Aid Headquarters Corp., 246 F. Supp. 3d 835, 851–52 (S.D.N.Y. 2017), aff ’d, 725 F. App’x 41 (2d Cir. 2018) (flu shot reminders were health care messages).
20 See also Standards for Privacy of Individually Identifiable Health Information, 67 Fed. Reg. 53182, 53186 (Aug. 14, 2002) (“The purpose of the exclusions from the definition of marketing is to facilitate those communications that enhance the individual’s access to quality health care.”).
21 See 45 C.F.R. § 164.501(2)(j), (ii)(A).
23 The Federal Trade Commission, under a similar rule, has also identified the same categories of calls that convey health care messages: (1) “calls to describe a health-related product or service that is provided by, or included in a plan of benefits of, the covered entity making the communication,” (2) “calls for treatment of the individual,” and (3) “calls for case management or care coordination for the individual, or to direct or recommend alternate treatments, therapies, health care providers, or settings of care to the individual.” See Complying with the Telemarketing Sales Rule, FTC, https://www.ftc.gov/tips-advice/business-center/guidance/complying-telemarketing-sales-rule (last visited July 9, 2021). The FTC has specifically provided the example of calls by a “medical provider to provide medical appointment or other reminders” as an example of an “exempt healthcare-related HIPAA call.” Id.
24 2012 FCC Order, 27 FCC Rcd. at 1856 ¶ 63 (finding that “health screening reminders” are “intended to communicate health care-related information rather than to offer property, goods, or services”).
25 Id. at 1854 ¶ 60.
26 See, e.g., Jackson v. Safeway, Inc., No. 15-cv-04419-JSC (N.D. Cal. Oct. 11, 2016) (flu shot reminder found to be a health-care related message); Latner v. Mount Sinai Health Sys., Inc., No. 16 Civ. 683 (AKH) (S.D.N.Y. Dec. 14, 2016) (same); Zani v. Rite Aid Headquarters Corp., 246 F. Supp. 3d 835, 852 (S.D.N.Y. 2017), aff ’d, 725 F. App’x 41 (2d Cir. 2018) (calls alerting patients of the availability of a prescription medication were health care messages).
27 Jackson, No. 15-cv-04419-JSC; see also Physicians Healthsource, Inc. v. Janssen Pharms., Inc., No. 12-2132 (FLW) (D.N.J. Feb. 6, 2013) (“whether the sender will ultimately obtain an ancillary commercial benefit from sending an informational message does not alter this classification”).
28 The exemption for calls to wireless numbers have not changed.
29 2012 FCC Order, 27 FCC Rcd. at ¶ 38, 40.
30 47 U.S.C. § 227(b)(1)(A) (2021).
31 In the Matter of the Telephone Consumer Protection Act of 1991, 7 FCC Rcd. 2738, at ¶ 17 (1992) [hereinafter 1992 FCC Order]; 137 Cong. Rec. H11307 (Nov. 26, 1991) (statement of Sen. Edward Markey) (discussing broad application of the “emergency purposes” exception).
32 137 Cong. Rec. S18781-02 (Nov. 27, 1991) (statement of Sen. Ernest F. Hollings) (“The FCC must determine what constitutes an emergency purpose.”).
33 47 C.F.R. § 64.1200(f )(4) (2021) (emphasis added).
34 In the Matter of Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, 30 FCC Rcd. 7961, 8030–31 ¶¶ 143, 146 ( July 10, 2015). This exemption was also made subject to several conditions, such as requiring that the message be concise and contain the name and contact information of the healthcare provider, and expressly excludes any calls that include “telemarketing, solicitation, or advertising content, or which include accounting, billing, debt-collection, or other financial content.” Id. at ¶¶ 146-47.
35 Roberts v. Medco Health Sols., Inc., No. 4:15 CV 1368 CDP (E.D. Mo. July 26, 2016).
39 In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02-278, DA 20-318, Mar. 20, 2020, at ¶ 10, https://docs.fcc.gov/public/attachments/DA-20-318A1.pdf (“Unscrupulous callers should not view the relief we provide here as a retreat from our aggressive work to combat illegal robocalls.”) [hereinafter COVID-19 Ruling].
40 Id. at ¶ 7.
41 Id. at ¶ 9.
43 See Gabertan v. Walmart, Inc., Case No. C20-5520BHS, 2021 WL 843148 – F.Supp.3d – (W.D. Wash. Mar. 5, 2021).
44 Id. at *1.
45 Id. at *2-*3, *5 (quoting 35 FCC Rcd. at 2840).
46 Id. at *3.
47 Id. at *5 (citing An Phan v. Agoda Co. Pte. Ltd., 351 F. Supp. 3d 1257 (N.D. Cal 2018), aff’d 798 F. App’x 157 (9th Cir. 2020); Vallianos v. Schultz, No. 19-cv-0464 JCC, 2019 WL 4980649 at *3 (W.D. Wash. Oct. 8, 2019) (“the mere inclusion of a link to a website on which a consumer can purchase a product does not transform the whole communication into a solicitation”) (citing An Phan)).
48 See 47 U.S.C. § 227(a)(1).
49 See Facebook, Inc. v. Duguid, 141 S. Ct. 1163 (U.S. 2021). The Third, Seventh, and Eleventh Circuit Courts of Appeal had adopted a narrower definition of ATDS, holding that the TCPA only regulates devices that are capable of storing or producing telephone numbers using a random or sequential number generator to qualify as an ATDS. See Glasser v. Hilton Grand Vacations Co., LLC, 948 F.3d 1301, 1306 (11th Cir. 2020); Gadelhak v. AT&T Servs., 950 F.3d 458, 463 (7th Cir. 2020); Dominguez v. Yahoo, Inc., 894 F.3d 116, 119 (3d Cir. 2018). Indeed, in Glasser, the Eleventh Circuit provided definitive guidance on the definition of an ATDS, holding that a device does not qualify as an ATDS if (1) it does not use randomly or sequentially generated numbers or (2) it requires human intervention. See Glasser, 948 F.3d at 1304–05. The Second, Sixth, and Ninth Circuits had interpreted ATDS far more broadly, holding that an ATDS may include any equipment that can simply store and dial numbers. See Duran v. La Boom Disco, Inc., 955 F.3d 279, 283–84 (2d Cir. 2020); Allan v. Pa. Higher Educ. Assistance Agency, 968 F.3d 567, 574 (6th Cir. 2020); Marks v. Crunch San Diego, LLC, 904 F.3d 1041, 1052 (9th Cir. 2018).
50 See Facebook, Inc., 141 S. Ct. at 1173.
51 Compare Barnett v. Bank of Am., N.A., 3:20-cv-272-RJC-DSC (W.D.N.C. May 28, 2021) (granting summary judgment relating to ATDS) with Bell v. Portfolio Recovery Assocs., No. 5:18-cv-00243-OLG, n.4 (W.D. Tex. Apr. 13, 2021) (denying pending motions for summary judgment for additional briefing and granting additional limited discovery to allow parties to fully argue the “proper interpretation and scope of . . . footnote 7 of the Facebook opinion” because the language “might—according to plaintiff—mean that certain devices constitute restricted autodialers . . . if they ‘use a random generator to determine the order in which to pick phone numbers from a preproduced list.’”) (citing Facebook, Inc., 141 S. Ct. at 1172 n.7).
52 Courts have thus noted that there are “two layers to the consent inquiry.” Newhart v. Quicken Loans Inc., No. 9:15-CV-81250 (S.D. Fla. Oct. 13, 2016). “First, the trier of fact must determine whether each challenged call was made for a telemarketing purpose. If so, prior express written consent would have been required.” Id. (citing 47 C.F.R. § 64.1200(a)(2)). “Second, the trier of fact must determine [the defendant] possessed the requisite consent before making each challenged call.” Id.
53 47 C.F.R. § 64.1200(f )(1); see Payton v. Kale Realty, LLC, 164 F. Supp. 3d 1050, 1061 (N.D. Ill. 2016) (whether a call includes or introduces an advertisement depends on the call’s content).
54 47 C.F.R. § 64.1200(f )(13) (emphasis added); Payton, 164 F. Supp. 3d at 1063 (the “telemarketing” inquiry focuses on the purpose of the call, rather than its content).
55 Smith v. Blue Shield of Cal. Life & Health Ins. Co., 228 F. Supp. 3d 1056, 1067 (C.D. Cal. Jan. 13, 2017).
56 These determinations are generally made on a case-by-case basis in TCPA actions. See St. Louis Heart Ctr., Inc. v. Caremark, L.L.C., No. 4:12cv2151 TCM (E.D. Mo. Apr. 19, 2013) (citing G.M. Sign, Inc. v. MFG. com, Inc., No. 08 C 7106 (N.D. Ill. Apr. 24, 2009)).
57 Friedman v. Torchmark Corp., No. 12-CV-2837-IEG BGS (S.D. Cal. Aug. 13, 2013).
59 See also Gerrard v. Acara Sols. Inc., 469 F. Supp. 3d 96, 100 (W.D.N.Y. 2020) (dismissing claim because the 200+ text messages referenced job opportunities); Dolemba v. Illinois Farmers Ins. Co., No. 15 C 463 (N.D. Ill. Aug. 10, 2015) (call inviting plaintiff to attend a “town hall call offering a business opportunity” was not an advertisement or telemarketing); Payton, 164 F. Supp. 3d at 1061 (text message inviting plaintiff to visit website and including sales commission information as real estate agent recruitment tool was not an advertisement or telemarketing); Edelsberg v. Vroom, Inc., No. 16-cv-62734-GAYLES (S.D. Fla. Mar. 27, 2018) (dismissing TCPA claim because text message responded to plaintiff ’s public listing for a vehicle for sale and thus was not telemarketing).
60 Salmon v. CRST Expedited, Inc., No. 14-CV-0265-CVE-TLW (N.D. Okla. Mar. 25, 2015).
61 Cf. N.B. Indus. v. Wells Fargo & Co., 465 F. App’x. 640, 642 (9th Cir. 2012) (faxes sent by Wells Fargo about leadership award, application for the award, and encouragement to apply were informational messages).
62 Smith v. Blue Shield of Cal. Life & Health Ins. Co., 228 F. Supp. 3d 1056, 1057–58 (C.D. Cal. Jan. 13, 2017).
64 Id. at 1057.
65 Murphy v. DCI Biologicals Orlando, LLC, No. 6:12-cv-1459-Orl-36KRS (M.D. Fla. Dec. 31, 2013), aff ’d, 797 F.3d 1302 (11th Cir. 2015).
66 Murphy, No. 6:12-cv-1459-Orl-36KRS.
67 Cf. Phillips Randolph Enters., LLC v. Adler-Weiner Rsch. Chi., Inc., 526 F. Supp. 2d 851, 853 (N.D. Ill. 2007) (finding that a fax notifying the recipient of a new research study on a health care program was not an advertisement); Ameriguard, Inc. v. Univ. of Kansas Med. Ctr. Rsch. Inst., Inc., No. 06-0369-CV-W-ODS (W.D. Mo. June 23, 2006) (finding fax did not constitute advertisement because it announced existence of a clinical drug trial and need for test subjects), aff ’d, 222 F. App’x 530 (8th Cir. 2007).
68 Reese v. Anthem, Inc., No. 17-07940 § L(4) (E.D. La. Mar. 12, 2018).
69 See Physicians Healthsource, Inc. v. Janssen Pharms., Inc., No. 12-2132 (FLW) (D.N.J. Feb. 6, 2013) (finding fax was not an advertisement because “there are no statements included in the content of the fax that promote either the availability or the quality of Levaquin”); cf. Sandusky Wellness Ctr., LLC v. Medco Health Sols., Inc., 788 F.3d 218, 222–24 (6th Cir. 2015) (holding that two faxes listing medications available in the health plans of the plaintiff chiropractor’s patients were not advertisements).
70 Other examples of informational messages include reminders to complete an application or registration or a survey or related messages to follow up on previous commercial transactions. See, e.g., Broking v. Green Brook Buick GMC Suzuki, No. 15-1847 (BRM)(LHG) (D.N.J. Aug. 22, 2017) (concerning one “robocall” that was made to “complete or confirm” that the plaintiff was satisfied with his last car service visit); Wick v. Twilio Inc., No. C16-00914RSL (W.D. Wash. Nov. 1, 2016) (concluding that a text explaining how to complete an online order for a free sample, which the plaintiff had initiated, did not constitute telemarketing); Daniel v. Five Stars Loyalty, Inc., No. 15-cv-03546-WHO (N.D. Cal. Nov. 24, 2015) (reasoning that “a text sent solely for the purpose of allowing the recipient to complete a registration process that he or she initiated shortly before receiving the text is not telemarketing”); Aderhold v. car2go N.A., LLC, No. C13-489RAJ (W.D. Wash. Feb. 27, 2014) (granting judgment on the pleadings with respect to the plaintiff ’s TCPA claim, which related to a text intended solely to permit the plaintiff to complete the process he had initiated of registering for the defendant’s car-share service).
71 See Newhart v. Quicken Loans Inc., No. 9:15-CV-81250 (S.D. Fla. Oct. 13, 2016); 47 C.F.R. § 64.1200(a)(2) (2021).
72 Where a communication has more than one identifiable purpose, the FCC has provided guidance concerning “dual purpose” communications, stating that “such messages may inquire about a customer’s satisfaction with a product already purchased, but are motivated in part by the desire to ultimately sell additional goods or services.” In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 18 FCC Rcd. 14014, ¶ 142 (2003). When courts decide whether there was a dual, telemarketing purpose to an otherwise informational message, they perform a “plain reading of the text message at issue.” See Edelsberg v. Vroom, Inc., No. 16-cv-62734-GAYLES (S.D. Fla. Mar. 27, 2018) (holding that there was no telemarketing purpose for the challenged text message). They do not rely “on a plaintiff ’s perception of the call” or look beyond the actual message to consider extrinsic evidence, such as the purpose of the overall messaging campaign. See Newhart, No. 9:15-CV-81250 (“[D]eciding whether the telemarketing consent rules apply will require an examination of individual calls, not the “overall campaign.” . . . “The FCC’s regulation refers to the “purpose” of each singular call and contains no reference to the purpose of the overall campaign.”) (citations omitted and emphasis added); Salmon v. CRST Expedited, Inc., No. 14-CV-0265-CVE-TLW (N.D. Okla. Mar. 25, 2015) (plaintiff ’s perception that defendant could benefit from plaintiff ’s participation in free driving school did not have a dual, telemarketing purpose). In other words, it is the context and content of the actual message itself that matters. Merely including “collateral opportunities to purchase something from the caller do not constitute dual purpose messages where the opportunity to purchase something from the caller is too attenuated from the initial purpose of the communication.” Edelsberg, No. 16-cv-62734-GAYLES; see Salmon, No. 14-CV-0265-CVE-TLW; see also An Phan v. Agoda Co. Pte. Ltd., 351 F. Supp. 3d 1257, 1266 (N.D. Cal. 2018) (granting summary judgment in favor of defendant where “the context and the content of the messages demonstrate[d] that the purpose of the messages was not to advertise or telemarket, but instead was directly cabined to facilitating and completing an existing transaction”); Alleman v. Yellowbook, No. 12-cv-1300-DRH-PMF (S.D. Ill. Sept. 6, 2013) (no dual purpose where “[a] sale of goods or services is not advertised, promoted, contemplated, alluded to, or encouraged”).
73 For calls to a residential line using an APVR, prior express written consent is normally required. However, prior express consent is not required at all if, among other exceptions, the call (i) is not made for a commercial purpose or (ii) is made for a commercial purpose but does not include or introduce an advertisement or constitute “telemarketing.” The December 30, 2020 FCC Order, however, limited call volumes for these exemptions. For non-commercial calls to a residence, the FCC has limited callers to three APRV calls within any consecutive 30-day period and calls must allow recipients to opt out pursuant to 47 C.F.R. § 64.1200(b)(2) or (b)(3). In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02- 278 ¶ 15, 22 (Dec. 30, 2020).
74 See In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act. of 1991, 7 FCC Rcd. 8769, at ¶ 31 (1992) (“1992 FCC Order”).
75 Mais v. Gulf Coast Collection Bureau, Inc., 768 F.3d 1110, 1118 (11th Cir. 2014) (quoting 1992 FCC Order) (emphasis added); see also Reed v. Morgan Drexen, Inc., 26 F. Supp. 3d 1287, 1295 (S.D. Fla. 2014) (“great weight of authority” holds that “providing a cell phone number constitutes consent to be called, whether manually or by auto-dial”).
76 See In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 30 FCC Rcd. 7961, 7990, 8002, 8028-29, ¶¶ 49, 76, 141 (2015) [hereinafter FCC 2015 Declaratory Ruling].
77 See Mais, 768 F.3d at 1123; Fober v. Mgmt. & Tech. Consultants, LLC, 886 F.3d 789, 793 (9th Cir. 2018) (“[A]s the Eleventh Circuit has explained, the analysis under the FCC’s rulings turns on whether the called party granted permission to be called concerning a particular topic and not on how the calling party received the number.”) (citing Mais, 768 F.3d at 1123–24) (emphasis in original).
78 Fober, 886 F.3d at 793 (emphasis in original); see Mais, 768 F.3d at 1123 (“the FCC recently ruled that the TCPA does not prohibit a caller from obtaining consent through an intermediary”) (quotation and citation omitted).
79 Edelsberg v. Vroom, Inc., No. 16-cv-62734-GAYLES (S.D. Fla. Mar. 27, 2018) (emphasis added).
80 47 C.F.R. § 64.1200(f )(9) (2021).
81 See id. § 64.1200(f )(3) (emphasis added).
82 See 47 C.F.R. § 64.1200(f )(9)(ii) (2021).
83 See id. § 64.1200(f )(3).
84 See, e.g., Cullinane v. Uber Techs., Inc., 893 F.3d 53, 63–64 (1st Cir. 2018) (reversing enforcement of arbitration clause and finding that terms were not conspicuous and that consumers did not “provide their unambiguous assent to those terms”); see also Anand v. Heath, No. 19-CV-00016 (N.D. Ill. June 28, 2019) (refusing to enforce arbitration agreement where “[t]here was simply nothing present to [plaintiff ] that conditioned her continued navigation on the site to acceptance of the terms and conditions available through the hyperlink”).
86 Wilson, 448 F. Supp. 3d at 882 (“Clickwrap agreements are usually upheld by courts ‘because they present the consumer with a realistic opportunity to review the terms of the contract and they require a physical manifestation of assent.’”) (quoting Applebaum v. Lyft, Inc., 263 F. Supp. 3d 454, 465 (S.D.N.Y. 2017); Hidalgo v. Amateur Athletic Union of the United States, Inc., 468 F. Supp. 3d 646, 654 (S.D.N.Y. 2020) (“[Courts routinely uphold “‘clickwrap’ (or ‘clickthrough’) agreements, which require users to click an ‘I agree’ box after being presented with a list of terms and conditions of use for the principal reason that the user has affirmatively assented to the terms of agreements by clicking ‘I agree.’”) (quoting Meyer v. Uber Techs., Inc., 868 F.3d 66, 75 (2d Cir. 2017)).
87 The TCPA is silent on the processes by which parties may revoke their consent. However, the FCC and courts have ruled consent can be revoked at any time and using any reasonable means. ACA Int’l v. FCC, 885 F.3d 687, 709–10 (D.C. Cir. 2018) (callers can avoid TCPA liability by offering “clearly-defined and easy-to-use opt-out methods”); In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 30 FCC Rcd. 7961, 7989–90 ¶ 47 (2015). Courts are split about whether parties might be contractually restricted in revoking consent. Compare Reyes v. Lincoln Auto. Fin. Servs., 861 F.3d 51, 56–57 (2d Cir. 2017) (contract overrides TCPA, at least for non-marketing calls relating to contract) with Singer v. Las Vegas Athletic Clubs, 376 F. Supp. 3d 1062, 1073–74 (D. Nev. 2019) (rejecting Reyes in favor of finding a statutory right to revoke any consent given under TCPA).