The Telephone Consumer Protection Act (“TCPA”) potentially touches just about every kind of business, including the business of selling prescription drugs. That is what the Northern District of California grappled with (correctly) in Jackson v. Safeway, Inc., No. 15-cv-04419, 2016 U.S. Dist. LEXIS 140763 (N.D. Cal. Oct. 11, 2016). In Jackson, the plaintiff received a telephone reminder from her pharmacy that she was due for an annual flu shot, which prompted her to go in the next day to receive her shot. Id. at **5-6. Of course, what do you do after you receive disease-preventing medical treatment? You file a class action lawsuit dissing the pharmacy for bothering to call. What is the old saying about no good deed?
For the uninitiated, the TCPA is the federal statute passed in the early 1990s that regulates “telemarketing.” We place that word in quotes for two separate reasons. First, we use quotes to demarcate a term of art—the FCC uses the term “telemarketing” to define significant obligations under the Act. Second, we use quotes to indicate irony (picture us making the familiar “air quotes” gesture as you read this post). Although Congress passed the TCPA to cut down on intrusive “telemarketing” calls, many say that the FCC’s regulations do not target “telemarketers” narrowly enough. That makes other businesses who are reaching out to their customers (like our pharmacy) potential targets for abusive litigation. The stakes are high. The statute imposes penalties of up to $1,500 per violation, and in a society where telephones increasingly serve as our windows to commerce and human relations, those penalties can multiple to large numbers quickly.
A particular target for critics of the regulations is a 2012 FCC order that could have, for example, strengthened an exception for calls made within existing business relationships. But the 2012 order instead abolished that exception, among other provisions. A follow-up order issued in 2015 clarified matters, but that also fell short of expectations for many. One example is the FCC’s definition of an “automated telephone dialing system,” which some say is now broad enough to include our iPhones. We are not so sure, but the ambiguity in the rules is most unwelcome. (You can read Reed Smith’s alert on the 2015 order here.)
We are writing about this here because the district court in Jackson invoked two TCPA exceptions that apply to healthcare: (1) The “exigent healthcare treatment exception,” which creates a safe harbor for “exigent” calls that have a “healthcare treatment purpose” and “are not charged to the calling party”; and (2) the “telemarketing health care exception,” which permits automated calls that deliver “health care” messages from HIPAA covered entities and their business associates.
Applying both exceptions, the district court granted summary judgment. A lynchpin of the TCPA, as applied in the FCC’s 2012 order, is that “prior written consent” is required for most automated telemarketing calls. That can be an exacting requirement. But the pharmacy complied with the statute regardless because its calls to the plaintiff were “exigent healthcare treatment” calls within the safe harbor. The safe harbor covers routine health care messages, including reminders for “wellness checkups” and “prescription notifications.” Id. at *11. There are specific requirements for what numbers can be called, the content of the messages, the length of the messages, the number of messages, etc. The pharmacy clearly worked with capable TCPA counsel in devising its flu shot reminder program because its reminder calls met every requirement. Id. at **14-19. The pharmacy also limited its calls to existing patients (1) who had provided their telephone numbers, (2) who the pharmacy believed had received a flu shot at the pharmacy during the immediately preceding flu season, and (3) who had not yet received a flu shot for the current flu season. Id. at **4-5. And, because the plaintiff in this case had an unlimited talk, text, and data plan, she did not incur charges for the call. Id. at **14-15. Under these facts, the pharmacy dropped its anchor firmly within the safe harbor.
The district court also applied the “telemarketing health care exception” to reach the same result. Even if the calls constituted “telemarketing,” the pharmacy needed only the plaintiff’s “prior express consent”—as opposed to “prior express written consent.” The plaintiff had provided her express consent when she gave the pharmacy her mobile number when she received her last flu shot. Id. at **30-31. This is one of the most important parts of TCPA law: Providing your phone number constitutes your consent to receiving calls. The issue becomes the scope of the consent, and because the plaintiff provided her phone number in connection with receiving flu shots in prior years, the scope clearly included consent to telephone flu shot reminders. Id. at **31-32. We are surprised that the plaintiff attempted to argue otherwise.
Other than consent, the calls were “health care” messages because they concerned “care, services, or supplies related to the health of an individual.” Id. at **23-26. Again, we are surprised the plaintiff argued otherwise. In addition, the reminder calls were “in accordance with a prescription,” a separate basis for invoking the health care exception. Id. at **26-27. Flu shots are prescription drugs. Pharmacists can administer flu shots under a California law that allows vaccinations without patient-specific prescriptions, but they are prescription drugs nonetheless.
In short, Jackson came to the right result for the right reasons. It is difficult to disagree with the purpose behind the TCPA, which is to address “the proliferation of intrusive, nuisance [telemarketing] calls to [consumers’] homes.” Id. at *8. But the exceptions for healthcare messages are reasoned and fair; they promote public health; and courts should apply them vigilantly, as this district court did. If the plaintiff makes it through this flu season unscathed, she has her pharmacy to thank for it. Of course, if her attorneys had their way, she may not have received a flu shot at all.