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District Courts Find ATDS Allegations Implausible Following Facebook

Courts in the Southern District of California and District of Arizona recently added to the line of decisions addressing ATDS pleading requirements in the wake of the Supreme Court’s landmark ruling in Facebook v. Duguid.  Declining to infer that targeted text messages warranted an inference that the sender used an ATDS, the courts in Wilson v. rater8, LLC, et al., No. 20-cv-1515, 2021 WL 4865930 (S.D. Cal. Oct. 18, 2021), and DeClements v. Americana Holdings LLC, No. CV-20-00166-PHX-DLR, 2021 WL 5138279 (D. Ariz. Nov. 4, 2021), dismissed plaintiffs’ complaints for failure to sufficiently allege the use of an ATDS.

In Wilson v. rater8, the plaintiff filed a class action alleging that defendants violated the TCPA by sending him, after a medical examination, a text asking him to provide feedback regarding his examining physician.  2021 WL 4865930.  The plaintiff alleged that the text was sent using an ATDS.  The court granted defendants’ motion to stay pending the outcome of the Supreme Court’s decision in Facebook.  Following that ruling, defendants moved to dismiss, arguing that plaintiff did not allege sufficient facts to support the claim that an ATDS was used.

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PBM’s Policy Update Fax Not TCPA “Advertisement,” Says Eastern District of Missouri

Earlier this week, the U.S. District Court for the Eastern District of Missouri granted summary judgment for a pharmacy benefit manager (PBM) that allegedly violated the TCPA by sending unsolicited advertisements via fax to thousands of healthcare providers. The defendant was entitled to judgment as a matter of law, the court concluded, because the fax simply notified recipients of changes to insured patients’ coverage and did not promote any products or services.

The case began when a St. Louis healthcare provider (BPP) filed a complaint alleging that defendant CaremarkPCS Health, LLC, violated the TCPA when it sent an unsolicited fax to over 55,000 providers notifying them of new limits on insurance coverage for opioid prescriptions for pediatric and adolescent patients in plans sponsored by Caremark’s clients. BPP v. CaremarkPCS Health, LLC, No. 4:20-cv-126, 2021 WL 5195785, at *1 (E.D. Mo. Nov. 9, 2021). Caremark, which manages prescription drug benefits for various health insurers, asked for summary judgment on the ground that the fax was not an “advertisement” under the TCPA and that plaintiff’s claim therefore failed as a matter of law. Id.

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“The Number You Have Dialed Has Changed Subscriber” or the Advent of the Reassigned Numbers Database

After years of discussion and planning, the FCC’s Reassigned Numbers Database opened for commercial use on November 1, 2021. Now business callers can register for a paid subscription with the FCC’s designated Administrator, SomosGov, to query both the connection and permanent disconnection status of over 152 million U.S. telephone numbers through this web-based platform. This information can let subscribing callers know whether customers who had previously given consent to receive calls and texts from the business have disconnected their phone numbers and whether these phone numbers have since been reassigned to others. By reducing the likelihood of unwittingly making calls to unintended recipients, the Reassigned Numbers Database is expected to prevent millions of “unwanted calls intended for someone who previously held their phone number,” which should provide callers some protection against TCPA allegations of calling without adequate prior consent.

Initially adopted in December 2018, the Reassigned Numbers Database proposal and framework underwent many rounds of public comments on various aspects of its implementation, had nearly three years of preparation, and had a three-month beta test. Since April 2021, nonexempt communications service providers have been reporting permanent disconnections to the Reassigned Numbers Database each month, accumulating data about over 152 million U.S. telephone numbers (including toll-free numbers). Smaller communications service providers began reporting their records into the Reassigned Numbers Database on October 15, 2021.

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