TCPA liability by the emergency purposes exception” because the “face of the complaint” did not indicate that the intended recipient of the calls “would suffer death or serious injury if she did not receive the prescription medication.” A “death or serious injury” standard is more stringent than the FCC’s broad definition of “emergency purposes,” which the FCC has defined as applying to “calls made necessary in any situation affecting the health and safety of consumers.” See 47 C.F.R. § 64.1200(f)(4). The Court did not acknowledge the broad wording of the “emergency purposes” definition, seemingly rejecting the statutory emergency purposes exception in this case because of Rite Aid’s failure to satisfy the specific requirements of the FCC’s 2015 exemption.
Some are criticizing the decision as an error that fails to binance data user list account for the FCC’s express recognition that calls may be protected by the emergency purposes exception even if the calls do not satisfy the requirements of the 2015 exemption.
To be sure, in a brief filed in the ACA International proceedings, the FCC disputed Rite Aid’s argument that the 2015 exemption was arbitrary and capricious because it imposed conditions not contemplated by Congress when it created the emergency purposes exception. The FCC argued that to the extent a call falls outside the 2015 exemption but within the emergency purposes exception, “parties can rely on the emergency-purposes exception on a case-by-case basis.” Brief for Respondents at 72, ACA Int’l v. FCC, No. 15-1211, (D.C. Cir., Jan. 15, 2016). The Smith court considered the FCC’s position and “interpret[ed] this to mean that a party cannot rely on the emergency purpose exception for calls, such as those in this case, that fit under the exigent healthcare call exception.” Slip Op. n. 4. Yet, some find this odd because the Smith court confusingly ruled that the calls here did not fit under the exigent healthcare call exception—meaning that these are the very types of calls that could qualify for the emergency purposes exception.
Perhaps the Court would have reached a different conclusion on summary judgment rather than on a motion to dismiss, but the possible implications of the Court’s ruling that prescription calls are “emergency purposes” calls only if they satisfy all the requirements of the separate 2015 exemption are cause for concern. Because of the limitations of the 2015 exemption, this ruling, if taken at its word and applied elsewhere, could mean that:
Prescription calls cannot come within the emergency purposes exception if the patient has a phone plan with a limited number of minutes or texts, regardless of how dire the patient’s medical circumstances or how critical it may be for the patient to stay on her medications.
Prescription notification calls beyond one call per day and three calls per week cannot be emergency purposes calls, regardless of whether there is a medical reason for more frequent calls.
A call that is not “concise” generally could not qualify as an emergency notification, even if the patient’s medical condition required a longer call.
Critics opine that it is likely that the Smith court did not fully consider such scenarios when coming to its ruling.
You may recall that in January, a district court declined to extend the emergency purposes exception to Rite Aid’s prescription reminder calls in Coleman v. Rite Aid of Ga., Inc., 284 F. Supp. 3d 1343. In the Coleman case, though, the Court’s decision was based in large part on the fact that the plaintiff alleged that he “told Defendant’s pharmacy employee that the wrong person was being called,” “told the Defendant’s pharmacy employee that he did not know the person to whom the messages were directed,” and “requested Defendant stop the calls to his cellular phone.” Because Rite Aid was informed that Coleman no longer wished to receive calls, the Court determined that they could not have been made for emergency purposes, distinguishing the calls to Coleman from those where the pharmacy thought they were calling a patient or customer, such as was found in Roberts v. Medco Health Solutions, No. 4:15-cv-1368-CDP, 2016 WL 3997071 (E.D. Mo. July 26, 2016).
For pharmacies especially, the Smith ruling creates uncertainties, but some comfort can be found in the cases that have recognized that prescription reminder calls are protected by the emergency purposes exception as calls “affecting the health and safety of consumers,” including Roberts and Lindenbaum v. CVS Health Corp., No. 1:17-CV-1863, 2018 WL 501307 (N.D. Ohio Jan. 22, 2018).
The Court declined to rule that “prescription notice calls are necessarily shielded
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