The District of New Jersey recently endorsed the view that calls regarding the availability of free services may plausibly qualify, at the pleadings stage, as “telephone solicitations,” and as such be subject to the Do Not Call prohibition, where the calls are part of a larger marketing program for the defendant’s services. It also held, as the FCC has ruled, that the FCC’s exemption for calls that deliver a “health care message,” from a HIPAA-covered entity or its business associates, treats the calls differently based on whether the calls are delivered to a cell phone or a residential landline. Calls from such entities about health care, when made to wireless numbers, are exempt only from the requirement for written consent that applies to telemarketing calls. Unlike health care calls to residential landlines, these calls are not exempt from the TCPA’s general “prior express consent” requirement for prerecorded and autodialed phone calls, the court held.
In Fiorarancio v. WellCare Health Plans, Inc., the plaintiff alleged that he received 20 unconsented calls on his cell phone from the defendant, with whom he had no prior dealings, in violation of the TCPA. No. 21-14614, 2022 WL 111062, at *1 (D.N.J. Jan. 11, 2022). Many of the calls referenced free health care services offered by the defendant’s insurance plan, including in-home wellness assessments and drug therapy consultations. Some of the calls reminded the plaintiff to make an appointment with his dentist or to schedule a flu shot and said that the insurance plan might cover the costs of certain appointments. Four of the calls used a prerecorded voice. Although not discussed in the opinion, it appears that the calls were wrong-number calls by the defendant trying to reach a member of its health plan. Indeed, the defendant argued in its briefs that the calls were designed to help members use their existing insurance, not to sell insurance to the plaintiff. The plaintiff alleged that the calls violated the TCPA because they were “telephone solicitations” to a number on the DNC Registry, see 47 C.F.R. § 64.1200(c)(2), or because they included a prerecorded voice, see 47 U.S.C. § 227(b)(1)(A). The defendant moved to dismiss all claims under Rule 12(b)(6).
“Telephone Solicitation” Claim
There was no dispute that the plaintiff’s number was on the DNC Registry at the time of the calls. Instead, the parties disputed whether the calls qualified as “telephone solicitations” for purposes of Section 64.1200(c)(2), which prohibits solicitations to numbers on the DNC Registry. The defendant argued that the calls did not constitute “telephone solicitations” because they did not encourage or mention buying, renting, or investing in anything and simply provided information about free services offered by the defendant. The plaintiff argued that the calls were nevertheless “telephone solicitations” because, although they did not explicitly propose a commercial transaction, they were a “pretext” to one. The plaintiff cited cases finding that communications that were purely informational on the surface could still violate the TCPA. Id. at *2 (citing Physicians Healthsource, Inc. v. Boehringer Ingelheim Pharms., Inc., 847 F.3d 92 (2d Cir. 2017); Comprehensive Health Care Sys. of the Palm Beaches, Inc. v. M3 USA Corp., 232 F. Supp. 3d 1239 (S.D. Fla. 2017)).
The court held that the plaintiff had plausibly alleged that the calls could be actionable “pretext” calls. “[W]hile Defendant’s messages may have been informational on their face, it is plausible that they were part of a larger marketing, or profit-seeking, scheme and, as such, fall within the TCPA’s prohibition” on telephone solicitations. Id. at *3. The court emphasized the “broader context” in which the calls were made: 20 phone calls and 18 voicemails over 11 months, almost all of which were about free services. “This consistent pattern,” the court reasoned, “makes it more likely that the calls were part of an overall marketing scheme—businesses typically do not promote free services in such an aggressive manner without any business purpose.” Id. The court did not seem to consider, at the pleading stage, that a health insurer may well have a legitimate, non-marketing purpose to call plan members regularly about their insurance benefits, and that the calls to plaintiff were apparently misdirected calls intended for a plan member. But the court noted that whether the calls were actually a pretext for advertising was a fact question that “will only be clear after the parties (and the Court) learn more about why they were made.” Id.
The court acknowledged that the Third Circuit has never endorsed the pretext theory. Instead, the Third Circuit has described the viability of the theory as “a matter that is still open.” See Robert W. Mauthe, M.D., P.C. v. Optum Inc., 925 F.3d 129, 135 (3d Cir. 2019). And in an unpublished decision, the Third Circuit expressed concern that the pretext theory would “extend [the] TCPA’s prohibitions too far.” Robert W. Mauthe, M.D., P.C. v. Nat’l Imaging Assocs., Inc., 767 F. App’x 246, 250 (3d Cir. 2019). But because the Third Circuit has not explicitly rejected the pretext theory, the court found that the plaintiff’s claim was plausibly alleged. The court did not try to square the pretext theory with the TCPA’s definition of “telephone solicitation,” which requires the initiation of a phone call “for the purpose of encouraging the purchase or rental of, or investment in” property, goods, or services. 47 U.S.C. § 227(a)(4). The plain text of that definition would seem to exclude calls regarding free services, which do not encourage the called party to purchase, rent or invest in anything.
Prerecorded Voice Claim
The court next addressed whether calls to cell phones regarding health care are exempt from the TCPA’s regulations requiring prior express consent for calls that use an automatic telephone dialing system or an artificial or prerecorded voice. The defendant argued that Section 64.1200(a)(2) wholly exempts from any consent requirement all calls (even to cell phones) that deliver a “health care message” made on behalf of an entity covered by HIPAA. And since the calls to the plaintiff fall within that exemption, no consent was required for these prerecorded voice calls, the defendant argued. The plaintiff argued that Section (a)(2) exempts health care calls to cell phones only from that section’s heightened written consent standard and not from Section (a)(1)’s general “prior express consent” requirement for calls made using a prerecorded voice. In line with the guidance of the FCC, the court found that, while health care messages from a HIPAA-covered entity to residential landlines are exempt from any consent requirement, such calls to cell phones are exempt only from the written consent requirement that applies to telemarketing calls. Fiorarancio, supra, at *9. Since Section (a)(1)’s prior express consent requirement applied and the plaintiff alleged that he did not provide consent for the calls, the court found that the complaint plausibly stated a claim for relief.
Fiorarancio demonstrates that, in some cases, and before some courts, plaintiffs may be able to survive dismissal, even if they fail to allege an actual telephone solicitation, by alleging a “pretext” communication instead. The viability of the pretext theory is a matter that will need to be settled by the appellate courts. The case also provides a useful reminder that autodialed or prerecorded messages about health care may still be subject to the general consent requirement when delivered to cell phones.