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 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.

The Court declined to rule that “prescription notice calls are necessarily shielded from 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 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).