Texts Regarding COVID Vaccine Eligibility Are Not Actionable Under TCPA, Texas Northern District Holds

The U.S. District Court for the Northern District of Texas recently held that unsolicited text messages that simply inform recipients of the availability of a free COVID-19 vaccine are protected by the “emergency purposes” exception to the TCPA’s prior express consent requirement and also do not qualify as telephone “solicitations” prohibited by the FCC’s do-not-call (DNC) rules.

In Horton v. Tarrant County Hospital District, No. 4:22-CV-9-P, 2022 WL 702536 (N.D. Tex. Feb. 4, 2022), the plaintiff alleged that he received a single unsolicited text message from the defendant, a public hospital district, announcing that “everyone ages 12 and up is eligible for the COVID vaccine.” Mr. Horton alleged that the text was sent without his consent in violation of the TCPA’s prohibition on autodialed calls as well as the rule against solicitations to telephone numbers on the national DNC list.

The hospital district moved to dismiss the TCPA claim on the ground that the text was covered by the statute’s exception for calls made for “emergency purposes.” It also sought dismissal of the DNC claim on the ground that the text was not a prohibited “solicitation” for the purchase of goods or services. As we have often discussed in these pages, the TCPA exempts calls made for “emergency purposes” from its requirement that autodialed or prerecorded calls be made only with the called party’s prior express consent. 47 U.S.C. §§ 227(b)(1)(A)(iii), (b)(1)(B). The FCC has defined “emergency purposes” as calls “made necessary in any situation affecting the health and safety” of consumers. 47 C.F.R. § 64.1200(f)(4). In March 2020, the FCC issued a Declaratory Ruling confirming that the COVID-19 pandemic is an “emergency” and that calls made in response to the pandemic fall within the emergency purposes exception if they satisfy a two-part test. See Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 35 FCC Rcd. 2840, 2841 ¶ 7 (2020).

The magistrate judge agreed with the hospital district that the text message at issue here satisfied the FCC’s two-part test and recommended dismissal of both counts. The first requirement—that the caller be a hospital, healthcare provider, government health official or person acting under the express direction of such a person or entity—was easily satisfied. The second prong—that the calls be solely informational and directly related to the health and safety risk of the COVID-19 pandemic—was also satisfied, the magistrate judge found, because the text was sent during the President’s national declaration of emergency for COVID-19 and the text alerted recipients to the availability of a free COVID vaccine. “Because the nation was operating under an emergency declaration at the time Defendant texted Plaintiff its message, the text is cloaked in the protection of the emergency provision of the TCPA.” Horton, 2022 WL 702536, at *2. The magistrate judge cited a case from last year out of the Western District of Washington holding that texts regarding changes to pharmacy services implemented to mitigate the spread of COVID-19 fell within the TCPA’s emergency purpose exception. Id. (citing Gabertan v. Walmart, Inc., 523 F. Supp. 3d 1254, 1259-61 (W.D. Wash. 2021) (pharmacy’s informational texts about “[c]urbside pickup and mailing prescriptions—contactless access to prescriptions as part of an effort to mitigate the pandemic’s health risks—are facially, squarely within the emergency exception as articulated in the [FCC’s Declaratory] Ruling”)).

Plaintiff’s DNC claim also failed, the magistrate judge found, because the hospital district’s text was purely informational. The text did not seek to entice Mr. Horton to purchase or invest in the COVID-19 vaccine or any other goods or services, but simply provided information about the availability of a free vaccine. As such, the text was not a “solicitation” and therefore could not form the basis of a DNC claim.

The magistrate judge recommended dismissal of Mr. Horton’s TCPA and DNC claims, as well as his state law claim that depended upon establishing a TCPA violation. On March 3, 2022, the district court adopted the magistrate judge’s findings and recommendations and dismissed all claims against the hospital district. The hospital district’s purely informational text regarding the ongoing pandemic “clearly complies” with the FCC’s two-part framework for emergency purpose calls, the district court remarked. Order Accepting Magistrate’s Recommendation at 4, Horton, No. 4:22-CV-9-P (Mar. 3, 2022) (ECF No. 19).

The Northern District’s ruling in Horton provides important assurance that hospitals, clinics and healthcare providers should not be held liable for their efforts to disseminate information critical to the nation’s pandemic response. This ruling is especially important in light of President Biden’s decision last month to extend the federal declaration of emergency beyond March 1, 2022. See Notice on the Continuation of the Nat’l Emergency Concerning the COVID-19 Pandemic (Feb. 18, 2022) (extending declaration of emergency without indicating an end date).