The Second Circuit yesterday delivered a ruling that was widely expected but also widely welcomed by health care providers struggling to provide patients with important reminders while avoiding massive TCPA class action liabilities. Zani v. Rite Aid Hdqtrs. Corp., 17-1230-cv (Feb. 21, 2018), affirmed summary judgment in favor of Rite Aid over its prerecorded flu shot reminder calls. We wrote about the lower court decision in Zani here. The Second Circuit’s ruling came as no surprise because the same court last month ruled for another health care provider in rejecting TCPA claims over flu shot reminder texts. We analyzed that case, Latner v. Mount Sinai Health System, Inc., 879 F.3d 52 (2d Cir. 2018), here. Indeed, finding that the issues in Zani were “virtually identical” to those in Latner (Opinion, p. 5), the Second Circuit delivered its latest ruling in a non-precedential summary order.
While not surprising, the Zani ruling is an important reaffirmation of the principle that health care notifications are exempt from the TCPA’s restrictions on telemarketing calls. The FCC by regulation requires “prior express written consent” from the called party for autodialed or prerecorded calls that include “advertisements or telemarketing messages,” 47 C.F.R. § 64.1200(a)(2), (f)(8). But the FCC has exempted calls delivering a “‘health care’ message made by, or on behalf of, a ‘covered entity,’ or its ‘business associate,’ as those terms are defined in the HIPAA Privacy Rule.” 47 C.F.R. § 64.1200(a)(2) (quoting 45 C.F.R. 160.103). Such calls when made to cell phones still require prior express consent, but such consent need not be in writing nor contain the disclosures required by the FCC for written consent. When health care message calls go to residential landlines, there is no requirement for prior express consent of any kind.
The Second Circuit ruled that the prerecorded flu shot reminder calls at issue in Zani came within the FCC exemption; thus, the calls did not require written consent regardless of whether there was a “marketing purpose” to the calls. (Opinion, p. 7). Because Rite Aid called Zani on his cell phone, the call did require prior express consent, but the parties agreed that Zani had provided such consent when he provided his phone number to a Rite Aid pharmacy when obtaining an earlier flu shot, and the Second Circuit agreed. (Opinion, p. 5, noting that “‘Persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given . . . .’”) (quoting In the Matter of Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, 7 FCC Rcd. 8752, 8769 ¶ 31 (Oct. 16, 1992)).
Notably, the Second Circuit cautioned that advertising calls masquerading as health care calls might not come within the exemption: “There may well be messages that, though purportedly delivering a health care message, are so laden with marketing material as to raise a factual issue as to whether they fall outside the health care exemption.” (Opinion, p. 7). But the Rite Aid message, like the message in Latner, “raises no such concerns and comes within the exemption as a matter of law.” Id. No doubt, TCPA plaintiff lawyers will seize on the Second Circuit’s dictum to continue their assault on health care reminder calls, particularly if the calls contain promotional content. The messages in Zani and Latner were well on the safe side of that line. The Rite Aid message, for example, simply discussed the health benefits and availability of the Fluzone High Dose vaccine. The call noted that the vaccine was formulated for patients over 65 years of age to provide a “stronger immune response” “[b]ecause our immune system may need more help as we get older,” and advised that the vaccine was available while supplies lasted, with no appointment necessary and that most insurance plans were accepted. (Opinion, p. 3). The message did not include promotional material about Rite Aid, an important lesson to keep in mind when scripting calls designed to come within the 2012 health care exemption.