Rite Aid Wins Summary Judgment in TCPA Action Involving Prerecorded, Automated Call for Flu Shot Reminder
By Doug Bonner
In an outright win for pharmacies, the U.S. District Court
for the Southern District of New York, in the attached opinion, granted Rite
Aid’s motion for summary judgment in a class action alleging violations of the
TCPA.
The lawsuit arose from a single prerecorded, automated call made in
2014 by Rite Aid to the Plaintiff’s cell phone alerting him to the availability
of flu shots at Rite Aid pharmacies.
The court ruled that under the FCC’s
Health Care Rule exception to the Telemarketing Rule, even if a call is
telemarketing, if it delivers a “health care message” on behalf of a covered
entity or its business associate as defined under HIPAA regulations, it is
exempt from the prior written express consent requirement for calls to
cellular phones under the Telemarketing Rule. Therefore such a call could
be made merely with “prior express consent” such as the plaintiff
providing Rite Aid with his cell phone number, which was undisputed.
The
court’s ruling confirms that whenever a call is made that conveys a health care
message, even if it includes telemarketing or advertisements, it is exempt from
the Telemarketing Rule, and can be made with merely prior express consent
rather than the heightened prior express written consent requirement that
generally applies for all automated or prerecorded calls to wireless numbers
that include a telemarketing message.
