OAKLAND, Calif. (Legal Newsline) - A federal court in California has ruled that a flu shot reminder
call from a retail pharmacy did not violate the Telephone Consumer Protection
Act (TCPA) – one of the first rulings of its kind since health care organizations were included
in its safe harbor exemptions in 2015.
Matthew Knowles, an associate at McDermott Will and Emery’s
Boston office, said the ruling creates a clearer definition for health care
providers about when they’re allowed to use automated calling technology.
“This was one of the first decisions to apply the safe harbor
that the Federal Communications Commission (FCC) created in 2015,” Knowles told Legal Newsline.
“There are a number
of different health care providers that are trying to reach out to customers in
new ways. But because the TCPA is really complex, the boundaries of where it
applies and where it doesn’t is really unclear.”
The case, Jackson v.
Safeway Inc., in California was filed after a woman received a flu shot
reminder call from Safeway, Inc. She sued, saying it was a violation of the
TCPA, which bars robocalls using automated dialing technology.
However, under the TCPA – and most recently under the FCC’s 2015 safe harbor
exemptions specifically addressing cellphones – health care organizations can
make “exigent health care calls.”
Knowles said the court ruled in favor of Safeway for two reasons. Court documents show the plaintiff had signed a
consent form for Safeway to call her about a flu shot reminder a year before
she received the call, which nullifies a TCPA claim.
The court also determined that the call to Jackson was
protected under the safe harbor exemption.
“To be exempt, it has to be exigent and for health care
purposes,” Knowles said. “Flu shot reminds are a health care treatment, and
because it’s a reminder, it’s timely.”
Knowles said there are few different cases around the
country involving similar suits regarding TCPA and the safe harbor exemption.
He said these cases are all complicated because of the complexity of the law
and the exemptions.
Companies using automated calling need to make sure their
intent aligns with the exemption, and that the calls themselves meet certain
Calls can’t be too long, they can’t come more than a few
times a week and they have to come at no cost to the caller. Knowles said the
plaintiff in the Jackson case had an unlimited talk and text cellphone plane,
which meant the call came at no cost to her.
However, in cases where there’s
limited service, those cases are slightly more complicated.
“It’s a thorny issue,” he said. “TCPA is a bit of a square
peg and a round hole. As you know, there’s a huge generation of people out
there who don’t even have a landline phone. The law hasn’t caught up to that
Knowles said now that the court has created a clearer understanding
of how the TCPA safe harbor claim is applied, other health care providers might
be more apt to contact customers via automated calling technologies.
“It gives legitimate operators a bit more interface with
their patients,” he said.