District Court Rejects Argument that Pharmacy Prescription Calls are Protected by TCPA Emergency Purposes Exception
Posted: Thu Dec 26, 2024 10:52 am
Early this month, in Smith v. Rite Aid Corporation, 2018 WL 5828693 (W.D.N.Y. Nov. 7, 2018), the district court declined to rule that pharmacy prescription reminder calls come within the statutory emergency purposes exception to Telephone Consumer Protection Act restrictions, causing some uncertainty as to whether health care notifications may be sent via text message or automated reminder calls. The decision is already being criticized for its failure to account for the FCC’s prior acknowledgement that calls may be excepted from TCPA protection as calls made for emergency purposes even if those calls are not subject to the FCC’s 2015 exemption that covers certain “calls for which there is an exigency that have a healthcare treatment purpose.”
In Smith, a Rite Aid pharmacy placed prerecorded prescription bitcoin data user list reminders to consumer Ginger Smith. The calls were intended to alert customers to the status of their prescriptions, but the calls went to Smith, the third-party plaintiff, by mistake (the opinion alludes to the fact that the number was either re-assigned or transcribed erroneously). The slip opinion notes that Smith alleged that she received multiple calls per day/week on her cell phone without her consent. She claimed that the calls caused her “severe emotional distress” but she did not allege that she ever notified Rite Aid that she was receiving the calls by mistake. Rite Aid moved to dismiss the complaint, arguing that the calls were exempted from TCPA liability under both the FCC’s 2015 exemption for exigent health care calls and that the calls were excepted from TCPA liability because of the statute’s exception for calls made for “emergency purposes.”
Rite Aid’s reliance on the FCC’s 2015 exemption was rejected by the Court. In relying on In the Matter of the Rules and Regulations Interpreting the Tel. Consumer Prot. Act of 1991, 30 F.C.C. Rcd. 7961, 8031-32, 2015 WL 4387780, at *49-50 (2015), it ruled that the 2015 exemption covers “calls for which there is an exigency that have a healthcare treatment purpose” and specifically includes “prescription notifications,” but it exempts only one call per day and a maximum of three per week, and it also requires that the calls include an easy way for the caller to opt out of future calls. The 2015 exemption further requires that opt-out requests be honored “immediately.” Here, Smith alleged that she received multiple calls per day and that the calls did not include a way for her to opt out of or stop the calls. Rite Aid’s counsel conceded during oral argument that the 2015 exemption did not apply.
In Smith, a Rite Aid pharmacy placed prerecorded prescription bitcoin data user list reminders to consumer Ginger Smith. The calls were intended to alert customers to the status of their prescriptions, but the calls went to Smith, the third-party plaintiff, by mistake (the opinion alludes to the fact that the number was either re-assigned or transcribed erroneously). The slip opinion notes that Smith alleged that she received multiple calls per day/week on her cell phone without her consent. She claimed that the calls caused her “severe emotional distress” but she did not allege that she ever notified Rite Aid that she was receiving the calls by mistake. Rite Aid moved to dismiss the complaint, arguing that the calls were exempted from TCPA liability under both the FCC’s 2015 exemption for exigent health care calls and that the calls were excepted from TCPA liability because of the statute’s exception for calls made for “emergency purposes.”
Rite Aid’s reliance on the FCC’s 2015 exemption was rejected by the Court. In relying on In the Matter of the Rules and Regulations Interpreting the Tel. Consumer Prot. Act of 1991, 30 F.C.C. Rcd. 7961, 8031-32, 2015 WL 4387780, at *49-50 (2015), it ruled that the 2015 exemption covers “calls for which there is an exigency that have a healthcare treatment purpose” and specifically includes “prescription notifications,” but it exempts only one call per day and a maximum of three per week, and it also requires that the calls include an easy way for the caller to opt out of future calls. The 2015 exemption further requires that opt-out requests be honored “immediately.” Here, Smith alleged that she received multiple calls per day and that the calls did not include a way for her to opt out of or stop the calls. Rite Aid’s counsel conceded during oral argument that the 2015 exemption did not apply.