Thursday, April 27, 2017, 10:08 AM

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.


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