Over two years ago, we first argued that a pharmacist’s prescription refill reminder calls fell within the emergency purpose exception to the TCPA in Kolinek v. Walgreen Co. (N.D. Ill.). The TCPA, of course, prohibits many types of autodialed or pre-recorded/artificial voice calls to cell phones if made without the prior express consent of the called party, except where the calls are made “for emergency purposes.” 47 U.S.C. § 227(b)(1)(A). In Kolinek, the court held at the motion to dismiss stage that further factual development was necessary to evaluate whether the emergency purpose exemption precluded plaintiff’s claims because the complaint did not allege sufficient detail regarding the nature of the calls. Although the case settled before the court had the opportunity to rule on the issue on summary judgment, the court acknowledged the viability of the emergency purposes defense as a basis for approving the class action settlement despite objections that the settlement fund was a tiny fraction of potential liabilities. In its order granting final settlement approval, the court noted that the emergency purpose exception created a “tough row to hoe” for the plaintiff and that “further factual development might [have] prove[d] . . . that the calls were made for emergency purposes.” 311 F.R.D. 483 at 494, 495 (N.D. Ill. 2015). On July 26, a court finally had the opportunity to address the scope of the emergency purpose exception on a factual record, holding on cross motions for summary judgment on the named plaintiff’s individual claims that the emergency purpose exception foreclosed plaintiff’s TCPA claims regarding prescription calls. Roberts v. Medco Health Solutions, Inc., No. 15cv1368, 2016 U.S. Dist. LEXIS 97177 (E.D. Mo. July 26, 2016).

Defendants Medco, a pharmacy benefits manager, and Accredo Health Group, a specialty pharmacy, provided prescription and health benefit services to a family, each of whom “was receiving one or more prescription medications from defendants that would have been important to their continued health.” 2016 U.S. Dist. LEXIS 97177, at *4. A member of the family had provided the phone number to defendants, but the phone number was reassigned to plaintiff, who sued after receiving calls meant for the family, alleging that she received 115 calls to her cell phone using an artificial or prerecorded voice, in violation of the TCPA. Id. at *3-4. The court first held that only 5 of the alleged calls were potentially actionable, finding that the majority of the calls, which were blocked using a call-blocking application, did not trigger a violation of the TCPA because they were calls “in which a prerecorded voice ‘might [have], but d[id] not, play.’” Id. at *4-5 (quoting Ybarra v. Dish Network LLC, 807 F.3d 635, 641 (5th Cir. 2015)).

The five calls that remained at issue fell into three categories: a request to speak to the patient before filling a prescription; a call stating that the doctor needed to authorize a prescription renewal request; and a call regarding the status of a renewal order. Id. at *5-7. The court concluded that each of the 5 calls were “covered under the ‘emergency purposes’ exception to the TCPA.” Id. at *7. The court started and ended its analysis with the FCC’s definition of the scope of the exception, noting that “[t]he FCC has defined calls made for an emergency purpose as ‘calls made necessary in any situation affecting the health and safety of consumers.’” Ibid. (quoting 47 C.F.R. § 64.1200). The court recognized that “in many instances, a patient’s ability to timely receive a prescribed medication is critical to preventing a major health emergency.” Id. at *8. The court also rejected the plaintiff’s argument that the emergency purposes exception “is limited to large scale emergencies, such as natural disasters, that affect significant portions of the population.” Id. at *7. The court observed that “the plain language of the regulation in no way limits its application based on the size or public impact of the reason for the call,” and broadly held that “[c]alls like the ones here, involving an attempt to confirm or refill a prescription order, schedule a prescription delivery, or confirm that a prescription is on its way, fall within the ambit of ‘calls made necessary in any situation affecting the health and safety of consumers.’” Id. at *78.

The court also rejected plaintiff’s argument that the calls did not come within the emergency purpose exception because if they did the FCC would not have needed to create an exemption in the July 2015 Order (discussed here) “for calls ‘for which there is exigency and that have a healthcare treatment purpose.’” Id. at *8. The court again focused on the broad language of the FCC’s definition of “emergency purpose,” holding that plaintiff’s argument “would defy the plain language of the emergency purposes exemption,” and relied on the FCC’s brief in opposition to Rite-Aid’s challenge to the July 2015 Order (discussed here and here) to note that the FCC has acknowledged “that many healthcare calls fall within both the emergency purposes exception and the healthcare exemption [and that f]or those that do not fall within the healthcare exemption . . . parties are free to rely on the emergency purposes exception as appropriate.” Id. at *8-9.

Just a week after Roberts was issued, the FCC issued its long-awaited ruling on petitions filed by Blackboard, Inc. (“Blackboard”) and Edison Electric Institute and American Gas Association (collectively “EEI/AGA”), both of which had originally requested relief under the emergency purposes exception (although EEI/AGA ultimately narrowed their request for relief to focus solely on prior express consent).

The Blackboard petition was filed by a company that provides an “interactive web portal” offering a messaging platform allowing schools to reach parents by various means, including automated calls and text messages. Declaratory Ruling at 3-4. Blackboard filed a petition in February 2015 seeking a declaration that all of the communications sent by schools over its platform fall within the emergency purpose exemption. Id. at 3. While the FCC “declined to extend the TCPA’s emergency-purpose exception to all robocalls made by school callers[,]” it did rule that many types of school communications are exempt under the emergency purpose exception. Id. at 10 (emphasis in original). Reiterating that its rules “define an emergency for TCPA purposes as “any situation affecting the health and safety of consumers,’” id. at 8 (quoting 47 C.F.R. § 64.1200(f)(4)), the FCC “confirm[ed] that autodialed calls to wireless numbers made necessary by a situation affecting the health and safety of students and faculty are made for an emergency purpose.” Id. at 9. For example, “school callers may lawfully make autodialed calls and send automated texts to student family wireless phones without consent for emergencies including weather closures, fire, health risks, threats and unexcused absences.” Id. at 8. The FCC further noted that “this list is not meant to be an exhaustive list of emergency calls but represents those examples cited in the current record. Other types of calls may conceivably fall within the emergency-purpose exception if they can be shown to be made for health or safety reasons.” Id. at 9 n. 75. The FCC clarified, however, “that autodialed or prerecorded calls made for purposes that do not affect health and safety concerns,” such as calls regarding “an upcoming teacher conference, or general school activity” were not exempt under the emergency purpose exemption. Id. at 10, 11.

According to the FCC, however, such calls, along with the calls at issue in the EEI/AGA petition (calls “that warn about planned or unplanned service outages; provide updates about service outages or service restoration; ask for confirmation of service restoration or information about lack of service; provide notification of meter work, tree trimming, or other field work that directly affects the customer’s utility service; notify consumers they may be eligible for subsidized or low-cost services due to certain qualifiers[;] . . . and calls that provide information about potential brown-outs”) can fall within the prior express consent exception to the TCPA because they are “closely related” to the purpose for which the phone numbers were originally provided and thus within the scope of consent. Id. at 3 n. 14, 11, 13. The FCC reiterated that it “continues to interpret ‘closely related’ narrowly,” (id. at 8), meaning that while “consent to be called at a number in conjunction with a transaction extends to a wide range of calls ‘regarding’ that transaction[,] . . . . the scope of the consent must be determined upon the facts of each situation.” In re GroupMe, Inc., CG Docket No. 02-278, FCC 14-33, ¶ 11 (Released March 27, 2014). When discussing the EEI/AGA petition, the FCC reiterated two other points it has also made before: (i) that companies are required to demonstrate that the consumer provided consent and (ii) that the FCC

strongly encourage[s] . . . all robocallers[] to inform customers during the service initiation process or when updating contact information on the account as an additional safeguard that, by providing a wireless telephone number to them, the customer consents to receiving autodialed and prerecorded message calls at that number, to the extent such calls are closely [related] to the service purchased by the customer.

Id. at 8, 14; see also In re Request of ACA International for Clarification and Declaratory Ruling, CG Docket No. 02-278, FCC 07-232, ¶ 10 (Released Jan. 4, 2008) (“[W]e conclude that the creditor should be responsible for demonstrating that the consumer provided prior express consent.”); id. n.37 (“We encourage creditors to include language on credit applications and other documents informing the consumer that, by providing a wireless telephone number, the consumer consents to receiving autodialed and prerecorded message calls from the creditor or its third party debt collector at that number.”).

While agreeing with the result, Commissioner O’Rielly blasted the Commission for creating a “framework” “curtailing critical communications between companies and consumers,” where “parties have to spend resources to come before the Commission to ensure that they won’t face needless liability for such vital messages.” Id. at 20. He noted that “[t]he fact that the Commission must continually grant exemptions or clarifications to its TCPA framework . . . highlights that its interpretations of the law are overly restrictive, unrealistic, and unworkable.” Id. The Commissioner expressed hope “that the Commission’s general framework will be overturned in court . . . and that the Commission will chart a more rational course in the future.” Id.

Now that the FCC has provided additional guidance on the emergency purpose exception and a court has ruled on the scope of the exception, both confirming and adopting the expansive view of the exception that we first advocated in Kolinek, we expect that additional defendants will argue that the emergency purpose exception applies in their cases. Indeed, Roberts has already been cited as an additional authority in a TCPA action pending against Rite Aid in the Southern District of New York. To preserve a consent argument in the event the FCC or the court finds that the calls at issue do not fall within the emergency purpose exception, however, companies should also carefully consider whether the calls are “closely related” to the purpose for which the called number was provided and whether additional consent should be obtained.