Ashland Hospital Corp. has asked the U.S. Supreme Court to decide whether the Service Employees International Union (SEIU) violated the Telephone Consumer Protection Act (TCPA) by using an automated machine to redirect live callers to the hospital’s telephone system. The SEIU’s automated dialer called residential homes in Ashland’s service area to protest the hospital’s staffing and executive pay practices. Recipients of the automated calls were given the option of pressing “1? to be connected to the hospital’s CEO. The campaign overwhelmed the hospital’s trunk lines with more than 500 calls in a six-hour period. All of the calls originated from a single telephone number associated with the SEIU’s robo-dialer.

Citing the TCPA, the hospital filed suit in a Kentucky district court to stop the campaign. It is a violation under the TCPA to make any call to an emergency telephone line (including hospitals, medical physician or service office, or to the telephone line of a guest or patient room at a hospital) using an automatic telephone dialing system or pre-recorded voice. It is also a violation to use an automated dialing machine to engage two or more telephone lines of a multi-line business. The hospital alleged that the robo-call campaign created a risk to public safety by tying up all of its numbers and extensions used for patient care, patient rooms, security and administration and off-site family care centers.

The district court declined to issue an injunction and dismissed the hospital’s complaint, finding that the SEIU did not “call” the hospital but merely gave the recipients of the robo-call campaign the option of being redirected to the hospital’s CEO. Every call to the hospital was from a live caller and not from the automated dialing machine. On appeal, the U.S. Court of Appeals for the Sixth Circuit agreed, finding that the union could not be held liable for calls that the recipients had chosen to place to the hospital.

In its petition for Supreme Court review, Ashland argued that the Sixth Circuit defeated the purpose of the statute by inserting a live caller exception into the statute. According to Ashland’s petition, the “SEIU could have seized [the hospital’s] phone system for as fast and as long as the SEIU’s dialing system could dial residential telephone numbers and connect residents directly to [the hospital’s] trunk lines.”

“Under the panel majority’s rule, a single user of an automatic dialing system, using a single phone number, could implement a scheme that floods all the telephone lines of a business without the business having any recourse under the TCPA,” the petition said. “If the court of appeals decision is allowed to stand, no public safety program or business will be exempt from this threat.”

Ashland also criticized the Sixth Circuit’s reasoning that the TCPA only applied to direct contact between automated calls and their unwilling recipients: “The panel majority’s narrow interpretation of the act conflicts with the plain language of the statute and with the congressional intent to protect the public, including businesses and hospitals, from the misuse of automatic dialing systems.”

This case could have wide ranging consequences for nearly every employer that operates a telephone system. The Sixth Circuit’s decision means that the SEIU may have found a way to conduct disruptive, large volume robo-dialing campaigns without violating the TCPA. Employers in the healthcare industry should be particularly vigilant in developing contingencies to address this threat. Healthcare sector unions continue to be aggressive actors in the industry and the SEIU’s campaign against Ashland may provide a blueprint for other unions or disgruntled employees to follow. As such, these types of campaigns may be a new fixture on the healthcare labor and employment law front. Littler’s Healthcare Employment Counsel will follow new developments in this case, including whether the Supreme Court accepts the case for review.