The Telephone Consumer Protection Act (TCPA), which imposes a penalty of $500-$1,500 per violation for pre-recorded or auto-dialed calls to cell phones, contains two statutory exceptions to liability:
- where the recipient of the call provided his or her prior express consent to be called, or
- where the call was placed for an “emergency purpose.”
47 U.S.C. § 227 (b)(1). While much attention has been focused on “consent,” the FCC’s definition of “emergency purpose” has remained relatively untested in TCPA litigation.
That landscape may be beginning to change. The federal district court’s recent decision in the putative class action lawsuit Roberts v. Medco Health Solutions, et al., No. 4:15 CV 1368 CDP (E.D. Mo., July 26, 2016) recognized that consistent with the FCC’s promulgated definition, the emergency purpose exception must be interpreted broadly to cover any calls that may affect the health and safety of a consumer.
The “health and safety” of a consumer
The FCC, the administrative agency charged with implementing the TCPA, has defined the term “emergency purpose” as including “calls made necessary in any situation affecting the health and safety of consumers.” 47 C.F.R. § 64.1200. This definition has remained constant since its adoption in the early 1990s, but seldom-tested in litigation.
The issue before the court in Roberts was whether calls placed by the defendants– a pharmacy benefits manager and a specialty pharmacy – to a phone number they believed belonged to one of their patients, fell under the emergency purpose exception, or whether those calls could give rise to TCPA penalties. Each of the calls at issue related to prescription orders that had been placed by the defendants’ patients, or efforts by the pharmacy entities to ensure their patients adhered to their prescribed treatment.
The plaintiff in Roberts argued that the emergency purpose exception should not apply to such calls because the exception should be limited to large-scale emergencies, such as natural disasters, that affect significant portions of the population. The district court rejected this narrow interpretation because “the plain language of the regulation in no way limits its application based on the size or public impact of the reason for the call.”
Holding: Calls that relate to prescription refills, order scheduling, or confirmations can fall under the emergency purpose.
The Roberts court recognized that “in many instances a patient’s ability to timely receive a prescribed medicine is critical in preventing a major health emergency.” Accordingly, the court went on to hold that “calls like the ones here, involving an attempt to confirm or refill a prescription order, schedule a prescription delivery, or confirm that a prescription is on its way, fall within the ambit of ‘calls made necessary in any situation affecting the health and safety of consumers’” and therefore did not violate the TCPA. The court granted summary judgment in favor of defendants on the plaintiff’s TCPA claim and dismissed the remainder of the lawsuit.
What does Roberts mean?
While Roberts is only one decision by a district court, it is significant because it squarely addresses the types of healthcare calls that may be excluded from TCPA penalties, including order scheduling, prescription refill calls, and potentially other calls dealing with a patient’s treatment.
And the Roberts decision also recognized another key point for healthcare organizations – that the FCC’s newly declared, and limited, “exemption” for calls “for which there is exigency and that have a healthcare treatment purpose” (See In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 F.C.C. Rcd. 7961, 8031 (2015)) does not necessarily limit the applicability of the statutory “emergency purpose” exception. In other words, calls that may not fall within the FCC’s limited healthcare exemption, may still fall under the emergency purposes exception that was created by Congress when the TCPA was enacted.
Analyzing liability for the calls your organization places
While Roberts represents a victory for healthcare organizations, the TCPA is a highly litigious area of law, and the legal landscape surrounding the TCPA is constantly evolving. Analyzing your organization’s potential TCPA exposure for healthcare-related calls and text messages can involve many factors, and you should consult expert legal advice when designing and implementing your calling programs.
Matt Knepper is an attorney with Husch Blackwell LLP. In addition to serving as the attorney for the defendants in Roberts v. Medco Health Solutions, Matt specializes in class actions and regularly defends healthcare and non-healthcare organizations accused of violating the TCPA. He also regularly advises entities on compliance with the TCPA and other privacy and consumer protection statutes.