Coleman v. Rite Aid of Ga., Inc.Coleman v. Rite Aid of Ga., Inc.
This case comes before the Court on Defendant Rite Aid of Georgia, Inc.'s motion [6] to dismiss.
I. Background
In June 2016, Donald Coleman began receiving pre-recorded automated voice messages from Rite Aid regarding prescription medications on his cell phone. These messages were directed to someone
On March 14, 2017, Coleman filed suit against Rite Aid asserting three claims. On May 1, Rite Aid filed a motion [6] to dismiss under Federal Rule of Civil Procedure 12(b)(6). On May 15, Coleman amended his complaint dismissing all claims except one: Rite Aid's violation of the Telephone Consumer Protection Act ("TCPA"),
II. Legal Standard
To survive a Rule 12(b)(6) motion, a plaintiff must plead "enough facts tо state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly ,
A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is nоt akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully.
Ashcroft v. Iqbal ,
Thus, a claim will survive a motion to dismiss only if the factual allegations in the complaint are "enough to raise a right to relief above the speculative level ...." Twombly ,
III. Discussion
A. TCPA Violation
Congress passed the TCPA to restrict the use of automated telephone systems, requiring the calling party to first obtain consent from the party being called. See
Coleman must establish three elements to state a claim for a violation of the TCPA: (1) the defendant called a cellular phone, (2) using an automated telephone dialing system or prerecorded message or artificial voice, (3) without the recipient's prior consent.
Rite Aid argues that the calls at issue are subject to either the exception for calls made for emergency purposes or the exception for calls made for health care purposes. See 47 U.S.C § 227(b)(1)(A) ;
B. Emergency Purposes Exception
Rite Aid asserts that the calls in question were made for an emergency purpose. Under
To support its defense, Rite Aid relies upon Roberts v. Medco Health Solutions , No. 4:15-cv-1368-CDP,
In Roberts , the plaintiff's number previously belonged to a customer of the defendant-company that placed the offending calls. It is unclear in Roberts whether the plaintiff ever informed the company that it was calling the wrong number, or asked for the calls to stop. Contrastingly, Coleman made Rite Aid aware that the calls were placed to the wrong person and regarded medication that was not his, yet Rite Aid continued calling.
Rite Aid states that Coleman does not "allege that he requested that the calls stop." [12] at 5. However, Coleman alleges in his complaint that he "told Defendant's pharmacy employee that the wrong person was being called," [1] ¶ 12, "told the Defendant's pharmacy employee that he did not know the person to whom the messages were directed," id. ¶ 13, and "requestеd Defendant stop the calls to his cellular phone," id. ¶ 14. Accepting Coleman's allegations as true, Rite Aid was informed that Coleman no longer wished to receive calls. This differs materially from the situation in Roberts and therefore compels a different conclusion.
Coleman's claims align more closely with those in St. Clair v. CVS Pharmacy, Inc. ,
If accepted, Rite Aid's argument would give carte blanche under the TCPA to companies that make automated сalls related to prescription notifications. As noted by the court in St. Clair , this outcome is inconsistent with the development of TCPA regulations and the emergency purpose exception generally: to prevent unwanted automated calls.
With no controlling case law in our circuit, but mindful of how other courts have dealt with this issue, the Court holds that the emergency purposes exception to the
C. Health Care Exceptions to the TCPA
In addition to the statutory exceptions to the TCPA (emergency purposes and prior express consent), the FCC has promulgated exceptions to the TCPA for certain calls related to health care.
Notwithstanding the volume of ink spilled on this regulatory crusade, there is a remarkable lack of clarity regarding the extent to which calls ordinarily subject to the TCPA are exempted because they are health care related.
1. The Health Care Rule
First, there is the Health Care Rule. This rule was codified after the FCC issued an order in 2012 "tightening the restrictions for automated telemarketing calls under the TCPA ...." Jackson v. Safeway, Inc. , No. 15-cv-4419-JSC,
The Health Care Rule is codified at
No person or entity may: ... Initiate, or cause to be initiated, any telephone call that includes or introduces an advertisement or constitutes telemarketing, using an automatic telephone dialing system or an artificial or prerecorded voice, to any of the lines or telephone numbers [listed, including cellular telephone lines], other than a сall made with the prior express written consent of the called party or the prior express consent of the called party when the call is made by or on behalf of a tax-exempt nonprofit organization, or a call that delivers a 'health care' message made by, or on behalf of, a 'covered entity' or its 'business associates,' as those terms are defined [by HIPAA].
Many courts have found that this provision provides an exemption only from the requirement of prior express written consent, rather than a wholesale exemption from any consent requirement. See Latner v. Mount Sinai Health Sys., Inc. , No. 17-99-cv,
Most of the cited authority concludes that the Health Care Rule still requires prior express consent based on the FCC's own interpretation of the Health Care Rule. The FCC has at least twice indicated that this is the case. In 2014, the FCC stated that HIPAA-covered calls (i.e., those that deliver a health care message) "to a wireless number are exempt from the written consent requirement" and that "[t]hese calls are still covered by the general consent requirement in [ 47 C.F.R. §] 64.1200(a)(1)." 2014 FCC Public Notice ,
In 2015, the FCC reiterated this, stating that "HIPAA-covered autodialed, prerecorded voice, and artificial voice calls to a wireless number are exempt from the TCPA's written consent requirement but are still covered by the general consent requirement." 2015 TCPA Order , 30 FCC Rcd. at 8030 n.481. Thus, the FCC's own interpretation of its regulation supports the notion that even under the Health Care Rule, prior express consent is still required.
Even so, at least one other Court has held (in dicta) just the opposite. See Jackson ,
This raises the question of whether the language of the regulation containing the Health Care Rule is ambiguous such that deference to the FCC's interpretation is warranted under Auer v. Robbins ,
As long as the interpretation adopted by the FCC is not "plainly erroneous or inconsistent with the regulation," the Court will accept the agency's interpretation. Auer ,
The Court finds the Health Care Rule ambiguous and thus will apply Auer deference. It is unclear from the structure of the regulation whether the clause providing the exception for "a call that delivers a 'health care' message" relates, for purposes of the exception, to the "prior express consent" in the clause before it, or if it starts a new clause entirely exempting the health care category of calls from any consent requirement. Accоrding to the FCC, it is the latter.
This ambiguity is at least manifested in, though not predicated upon, the decisions cited in this Order, which have arrived at opposite conclusions regarding the level of consent, if any, required for health care-related calls.
Accordingly, the Court defers to the FCC's interpretation that calls excepted by the Health Care Rule require prior express consent.
2. The "Health Care Treatment" Exception
In addition to the Health Care Rule, the FCC has provided an additional exception to the TCPA affecting health care-related calls. Section (b)(2)(C) of the TCPA provides that the FCC "may, by rule or order, exempt from the [restrictions on automated or prerecorded calls made to, inter alia, cell phones] that are not charged to the called party, subject to such conditions as the [FCC] may prescribe as necessary in the interest of the privacy rights [the TCPA] is intended to рrotect."
In 2015, the FCC conducted a " section 227(b)(2)(C) inquiry"-i.e., determined whether it would or could create a regulatory exception to the TCPA-when it granted an exemption requested by the American Association of Healthcare Administrative Management ("AAHAM"). 2015 TCPA Order , 30 FCC Rcd. at 8030. Among other things, AAHAM asked the FCC "to exempt from the TCPA's prior-express-consent requirement certain non-telemarketing, healthcare calls that are not charged to the called party." Id.
The FCC responded: "We grant the exemption [requested by AAHAM], with [certain] conditions ..., but restrict it to calls for which there is exigency and that have a healthcare treatment purpose ...." Id. at 8031. Relevant to this case, the FCC made it clear that this included "prescription notifications." Id. The Court refers to this as the Health Care Treatment Exception. Accord Latner ,
This "healthcare treatment purpose" standard is the hallmark of this regulatory exception.
It is clear that the Health Care Treatment Exception "went further than the Health Care Rule." Zani ,
But some clarity is still wanting. In a footnote to the 2015 TCPA Order , the FCC commented that "HIPAA-covered autodialed, prerecorded voice, and artificial voice calls to a wireless number are exempt from the TCPA's written consent requirement but are still covered by the general consent requirement." 30 FCC Rcd. at 8030 n.481 (citing
Bеcause this issue is not fully briefed, and there are other grounds for its decision, the Court declines to delve further into the regulatory morass at this time. But the identified tension could present an issue in future stages of the litigation.
Rite Aid also falls short of another prerequisite according to Coleman's averments. The Health Care Treatment Exception requires that "a healthcare provider ... offer recipients within each message an easy means to opt out of future such messages ...."
As a result Rite Aid's calls do not meet the prerequisites to the Health Care Treatment Exception.
IV. Conclusion
For the foregoing reasons, Rite Aid's motion [6] to dismiss for failure to state a claim is denied. Rite Aid is directed to file an Answer within twenty-one days of this Order.
IT IS SO ORDERED this 10th day of January, 2018.
Notes
For purposes оf this Order regarding a motion to dismiss, well-pleaded allegations are accepted as true and viewed in the light most favorable to the non-moving party. Powell v. Thomas ,
In Coleman's May 15 amendment dismissing two of his claims, he named the wrong party in the case caption. On June 20, Coleman filed another amendment correcting this error. It is clear to the Court that Coleman intended the dismissal of the claims to relate to Rite Aid, and that he clarified the error in a timely manner, resulting in no detriment to either party. Because his claims were dismissed and are no longer live, the Court need not address any of Rite Aid's arguments in its motion to dismiss regarding the dismissed claims.
The Court uses the phrase "health care relatеd" for convenience, and to distinguish from the regulatory terms of art "health care message" and "health care treatment purpose."
The parties do not dispute that Rite Aid's calls conveyed a health care message; accordingly, the Court assumes without deciding that this is the case.
The Court assumes without deciding that Rite Aid's calls were made for a health care treatment purpose.