Bottles of Ink: Court Observes that FCC’s Recent “Regulatory Crusade” Has Only Made the TCPA Murkier

It should come as no surprise to readers of this blog that the TCPA is the subject of regular criticism by judges across the country.  See e.g. Dominguez v. Yahoo!, Inc., No. 13-1887, 2017 U.S. Dist. LEXIS 11346, at *20 (E.D. Pa. Jan. 27, 2017) (calling the FCC’s 2015 Omnibus “a ‘mongrel’—with no offense to dogs.”). The ambiguities in the FCC’s rulings on the TCPA’s exceptions for healthcare-related calls are the most recent subject of judicial critique of the TCPA. 

In Coleman v. Rite Aid of Georgia, Inc., 2018 U.S. Dist. LEXIS 4276 (N.D. Ga. Jan. 10, 2018), the Plaintiff claimed that Rite Aid violated the TCPA when making autodialed calls to remind him about a prescription refill. Plaintiff claimed the calls violated the TCPA because Rite Aid didn’t have his consent, and kept calling after Plaintiff had told the pharmacy that they had the wrong guy. Rite Aid argued that the Court should dismiss the case because the calls fell under the TCPA’s two healthcare exceptions—the “Health Care” and “Health Care Treatment” exceptions.

As a starting point, the Court noted that despite “the volume of ink spilled” by the FCC on “this regulatory crusade,” there is still a “remarkable lack of clarity regarding the extent to which calls ordinarily subject to the TCPA are exempted because they are health care related.” The Court then held its breath, grabbed its nose, and plunged into the “tangled regulatory framework” of the TCPA to figure out if Rite Aid was “rite” about the TCPA.

The Court first examined the “Health Care Rule” under which calls that deliver a “health care” message are exempt from the TCPA’s consent requirements.  The Court found that the rule was unclear as to what consent requirements were exempted, though. Did the rule only exempt “health care” calls from the TCPA’s heightened written consent requirements (applicable to autodialed telephone solicitations), or did it exempt such calls from the consent requirements altogether?

As a quick aside, this issue begs the question of whether the TCPA’s written consent requirements would apply to health care-related calls in the first place. Presumably, if the purpose of the call is simply to deliver health care-related information, such as a specific appointment, prescription, or flu shot reminder, then it shouldn’t be regarded as a solicitation to begin with (i.e., a call to promote the sale of a good or service), and wouldn’t be subject to the written consent requirements. And yet, the FCC ruled in the 2015 Omnibus that while “HIPAA-covered” calls are exempt from the TCPA’s written consent requirements, they are still subject to its general consent requirements. Based on that ruling, the Court held that, given the ambiguities in the language of the “Health Care Rule,” the Court would defer to the FCC’s interpretation, and concluded that prior “general” consent was still required under the Health Care Rule.

That still leaves the “Heath Care Treatment” exception, which applies to calls “that have a healthcare treatment purpose.”  Which is different . . . somehow . . . than a call that delivers a “health care message.” In any event, the Court found that the Health Care Treatment exception went further than the Health Care Rule, and altogether exempted calls “that have a healthcare treatment purpose” from the TCPA’s consent requirements. Or did it? “Clarity is still wanting,” declared the Court, pointing back to the FCC’s ruling in the 2015 Omnibus that any “HIPAA-covered” calls were still subject to the TCPA’s general consent requirements. “The tension is manifest,” the Court observed.

But since the issue hadn’t been fully briefed to the Court, it concluded it would not “delve further into the regulatory morass” at the pleading stage. Can you blame it? And regardless, the Court found that Rite Aid was unable to establish the Heath Care Treatment exception applied because a healthcare provider was still required under the rule to immediately honor opt out requests, which Plaintiff alleged the pharmacy failed to do.

So, to recap, a call that delivers a “health care message” is exempted from the TCPA’s written consent requirements (even though it’s debatable whether those requirements apply in the first place). That is, unless the call has a “healthcare treatment purpose,” in which case no consent is required at all. But not so fast—if that same call is also a “HIPAA-covered call,” then according to the FCC, “general consent” may still be required. Is it any wonder why the TCPA gets so much flak?

 

 

Dorsey & Whitney

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