NACDS Files Amicus Brief in Support of Petitioner Rite Aid in Consolidated Appeal of FCC’s TCPA Order

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On December 2nd, the National Association of Chain Drug Stores, Inc. (“NACDS”) submitted an amicus brief in support of member organization and petitioner Rite Aid in the consolidated appeal of the FCC’s July 10, 2015 Declaratory Ruling and Order (the “Order”) in the United States Court of Appeals for the District of Columbia Circuit. See ACA Int’l, et al. v. FCC, No. 15-1211 (D.C. Cir.). We reported earlier that Rite Aid filed its opening brief focusing on the healthcare-related portions of the Order on November 25th, the same day the joint petitioners filed their opening brief. The NACDS notes that it also supports the joint petitioners’ arguments related to reassigned numbers, automatic telephone dialing systems, and revocation of consent but submitted a separate amicus brief to address the impact of the Order on critical patient healthcare notifications. Brief at 2 n.1.

The NACDS describes itself as a nonprofit trade association whose members “operate more than 40,000 pharmacies,” “employ 179,000 pharmacists,” “fill more than 2.9 billion prescriptions annually,” and “aid patients in taking their medicines correctly and safely, while offering innovative services that improve patient health and healthcare affordability.” Id. at 2. As such, “NACDS members have a strong interest in ensuring that they are able to communicate healthcare messages to their patients directly and effectively, without unnecessary regulatory restrictions.” Id. at 2-3. The NACDS explains that pharmacies’ healthcare communications to patients’ wireless phones are “critical to improving patient health and lowering healthcare costs” and therefore fall within the TCPA’s “emergency purposes” exemption for communications affecting consumer health or safety. The NACDS complains that the FCC failed to recognize that healthcare notifications are already exempt from the TCPA and instead created a burdensome new exemption that places unnecessary and unworkable conditions on the ability of pharmacists to communicate with their patients, and that “the FCC Healthcare Exemption . . . should be struck down as unlawful under the First Amendment.” Id. at 5, 13, 20.

First, the NACDS notes that “[p]harmacies provide their patients with several types of important healthcare communications,” such as prescription refill reminders, drug recall notifications, and informational messages regarding the importance of using medication as proscribed, “which arguably fall within the FCC category of ‘prescription notifications.’” Id. at 5 (citing Order ¶ 146). “These prescription notifications rapidly and conveniently alert patients to important and time-sensitive information that is critical to the medically appropriate use of their prescribed medications.” Brief at 5-6. Citing to a wealth of scholarly articles and studies, the NACDS states that the “[f]ailure to take medications as prescribed, known as medication non-adherence,” can lead to significant, potentially fatal, health complications and substantially higher healthcare costs. See id. at 6-8. A critical tool that pharmacists use to reduce medication non-adherence is “to quickly and efficiently contact patients on their phones to alert them to information related to their prescriptions . . . . [and since] nearly fifty percent of households no longer have residential landline phones, permitting pharmacists to make prescription notification calls and other healthcare calls to wireless phones is critical to achieving better health outcomes.” Brief at 10, 11.

Second, the NACDS notes that the “TCPA’s restrictions on calls to wireless phones do not apply to calls ‘made for emergency purposes . . . .” Id. at 13 (quoting 47 U.S.C. § 227(b)(1)(A)(iii)). “[T]he legislative history of the TCPA shows that Congress intended ‘emergency purposes’ to be interpreted ‘broadly rather than narrowly’” and the FCC has itself defined the term to mean “calls made necessary in any situation affecting the health and safety of consumers.” Id. at 13-14. The NACDS argues that the Order, however, fails to apply this broad “emergency purposes” exception from the TCPA to healthcare communications to patients’ wireless phones, but instead, imposes a “burdensome exemption for healthcare communications to wireless phones.” Id. at 14. Specifically, this exemption “adds an unexplained and undefined ‘exigency’ requirement,” “impose[s] a no cost requirement, which bars healthcare calls and texts that count against the call recipient’s cell phone plan minutes,” and “restricts the content, length, frequency and number of healthcare communications to patients’ wireless phones, even though these restrictions can impede the ability of a pharmacy to provide sufficient healthcare information to patients.” Id. at 14-15. The NACDS argues that the FCC’s imposition of these unworkable and unnecessary conditions has effectively “neutralized” the statutory emergency purposes exception as it relates to healthcare communications, and is arbitrary, capricious, and contrary to national healthcare policy promoting healthcare notifications to patients. Id. at 15-17.

Third, the NACDS argues that the Order’s healthcare exemption violates the First Amendment because its restrictions on speech are not narrowly tailored to serve a significant governmental interest. Id. at 18-19. On the contrary, the NACDS argues that these restrictions run counter to the “Congressionally-recognized significant government interest” of promoting healthcare communications. Id. at 19. The NACDS further notes that the FCC, U.S. Department of Health and Human Services, and the Federal Trade Commission “have repeatedly recognized the substantial interest in allowing patients to receive unburdened healthcare communications from their providers.” Id. In particular, the “FCC concedes that calls related to patient health and safety should be completely unburdened by TCPA requirements, regardless of other government interests protected by TCPA” by way of its adoption of a broad definition of the TCPA’s emergency purposes exception that includes “any communications if they are necessary to the recipient’s health or safety.” Id.

As relief, the NACDS asks the D.C. Circuit Court of Appeals to vacate the Order and recognize healthcare communications from pharmacies to their patients as both “necessary” and “affecting the health and safety of consumers,” putting them squarely within the TCPA’s emergency purposes exception. Id. at 21.