Tuesday, January 9, 2018

FYI: 2nd Cir Affirms Judgment in Def's Favor in TCPA Putative Class Action

The U.S. Court of Appeals for the Second Circuit recently affirmed the entry of judgment on the pleadings against the plaintiff in a putative class action alleging that a text message sent by third party on behalf of a hospital reminding the plaintiff about a flu shot violated the federal Telephone Consumer Protection Act ("TCPA"), holding that the plaintiff provided his prior express consent to receive such messages in a hospital admission form.


A copy of the opinion is available at:  Link to Opinion


The plaintiff went to a medical clinic owned by a hospital for a routine health examination in 2003. He completed several new patient forms, including one that gave consent to the hospital to use his health information "for payment, treatment and hospital operations purposes."


In June of 2011, the hospital contracted with a third party to send mass text messages, "including flu shot reminder texts" on the hospital's behalf.  In September of 2014, the plaintiff received a text message advising him that "[i]ts [sic] flu season again" and providing a telephone number to make an appointment for a "flu shot."


The plaintiff sued the clinic and hospital, alleging that the hospital violated § 227(b)(1)(A)(iii) of the TCPA, which "makes it unlawful to send texts or place calls to cell phones through automated telephone dialing systems, except under certain exceptions or with consent."


In December of 2016, the trial court granted the hospital's motion for judgment on the pleadings and dismissed the case. The plaintiff appealed.


On appeal, the Second Circuit explained that "Congress delegated authority to issue regulations under the TCPA to the Federal Communications Commission ("FCC")." The Court then discussed the history of the FCC's TCPA rulemaking, beginning with a 1992 order in which the FCC "concluded that 'persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary.'"


The Court went to explain that "[i]n 2008, the FCC extended this proposition to cell phone numbers".  Then, in 2014, the FCC clarified that "the scope of [an individual's prior express] consent must be determined upon the facts of each situation."


In addition, the Court explained that "[i]n 2012, the FCC devised a 'Telemarketing Rule' requiring 'prior written consent for autodialed or prerecorded telemarketing calls.'"


However, in the Telemarketing Rule, the FCC exempted from the written consent requirement "calls to wireless cell numbers if the call 'delivers a 'health care' message made by, or on behalf of, a 'covered entity' or its 'business associate,' as those are defined in the HIPPA Privacy Rule. … HIPPA defines health care to include 'care, services, or supplies related to the health of an individual … [and] exempts from its definition of marketing all communications made '[f]or treatment of an individual by a health care provider … or to direct or recommend alternative treatments' to the individual."


The Court then reasoned that although the trial court held that "the text message qualified for the FCC's Healthcare Exception[,]" its "analysis was incomplete." This was because the trial court found that the text message delivered a "health care" message under the HIPPA Privacy Rule, but "it did dot then go on to determine whether [plaintiff] provided his prior express consent to receive the text message."


The Second Circuit, however, nevertheless affirmed the trial court's judgment because after "considering 'the facts of the situation,'" the Court determined that the plaintiff had given his prior express consent to be called and texted when he provided his cell phone number when he first visited the clinic in 2003.


Accordingly, the trial court's judgment was affirmed.





Ralph T. Wutscher
Maurice Wutscher LLP
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Email: rwutscher@MauriceWutscher.com


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