Case Information

‐ ‐ cv v. Health System, Inc. In the

United States Court of Appeals

For the Second Circuit

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A UGUST T ERM No. ‐ ‐ cv

D ANIEL L ATNER , individually others similarly situated,

Plaintiff Appellant, v.

M OUNT S INAI H EALTH S YSTEM I NC W EST P ARK M EDICAL G ROUP , P.C.,

Defendants Appellees.

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Appeal United States Southern New York. 1:16  ―  Alvin K. Hellerstein, Judge . ________ RGUED : D ECEMBER

D ECIDED : J ANUARY ________ ‐ ‐

Before: C ABRANES AND L IVINGSTON Circuit Judges , and G OLDBERG , Judge. 

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Plaintiff Appellant Daniel commenced this putative class action against Defendants Appellants Mount Health System, Inc. and West Park Medical Group, P.C., seeking redress for autodialed message telemarketing communications made by defendants phones Plaintiff others violation Telephone Protection (“TCPA”). United States District for Southern District New York (Alvin K. Hellerstein, Judge ) Defendant Appellants’ for judgment pleadings.

We hold issue does not violate TCPA, thus, reasons different those stated Court, AFFIRM December Court.

________ LEXANDER H. B URKE Burke Law Offices, LLC,

Chicago, Illinois, Plaintiff Appellant.  Judge Richard W. Goldberg, of the United States Court of International Trade, sitting by designation.

S TUART M. G ERSON Patricia M. Wagner, Tanya v. Cramer, Epstein Becker & Green, P.C., Washington, DC for Defendants Appellees.

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JOSÉ A. CABRANES, Circuit Judge : question presented is whether a flu shot reminder sent a hospital violated Telephone

Protection (“TCPA”), U.S.C. §

This appeal United States District for Southern New York (Alvin K. Hellerstein, Judge ), Plaintiff ‐ Appellant David Latner (“Latner”) challenges Court’s decision granting Defendants Appellants Mount Sinai Health System, Inc.’s (“Mt. Sinai”) and West Park Medical Group, P.C.’s (“WPMG”) for pleadings.

In Latner went to a Mt. Sinai facility, WPMG, a routine overall health examination, and reviewed and filled out new patient forms. He signed New Patient health form containing his contact information and Ambulatory Patient Notification Record Mt. Sinai use his health information “for payment, treatment hospital operations purposes.”

In June Mt. hired third party, PromptALERT, Inc., send mass messages Sinai, including transmitting flu shot reminder texts WPMG. November year, returned WPMG declined any immunizations. *4 4 17 ‐ 99 ‐

On September 19, 2014, he received the following text from WPMG:

Its flu season again. Your PCP at WPMG is thinking you! Please call us 212 ‐ 247 ‐ 8100 schedule appointment for a flu shot. (212 247 8100, WPMG). Latner did not receive any further messages

WPMG. limited discovery below, Mt. Sinai stated it sent flu shot reminder texts all active patients WPMG who had visited the office in the three years the date the texts; Latner’s visit fell within timeline. filed suit, alleging Mt. violated §227(b)(1)(A)(iii) the TCPA. On December 14, 2016, the Court Sinai’s motion for judgment pleadings dismissed case. This timely appeal followed.

We review district court’s order granting defendant’s pleadings de novo . Hayden v. Paterson F.3d (2d Cir. 2010). We accept all factual allegations in complaint as true construe them light most favorable non moving party. Id. We may affirm decision any reason supported record. Beal v. Stern F.3d (2d Cir. 1999). *5 5 17 99

The TCPA makes it unlawful to send texts or place calls to cell phones through automated telephone dialing systems, except under certain exemptions or with consent. 47 U.S.C. § 227(b)(1)(A)(iii). Congress delegated authority to issue regulations under the TCPA to the Federal Communications Commission (“FCC”). 47 U.S.C. § 227(b)(2). Prior express consent is affirmative defense to liability under the TCPA. FCC first interpreted the TCPA’s prior express consent provision in 1992 Order implementing the TCPA, where it concluded “persons who knowingly release their phone numbers have effect given their invitation or permission to be called the number which they have given, absent instructions contrary.” In Matter of Rules Regulations Implementing the Tel. Consumer Prot. Act of 1991 , 7 FCC Rcd. 8752, 8768 69, ¶ 31 (1992). In 2008, FCC extended this proposition cell phone numbers. In Matter of Rules Regulations Implementing Tel. Consumer Prot. Act of FCC Rcd. 559, ¶ (2008) (holding provision phone numbers as part of hospital admissions constituted prior express consent receive calls relating medical debt). In 2014, FCC clarified “the scope [an individual’s express] consent must be determined upon facts each situation.” Matter GroupMe, Inc./Skype Commc’ns S.A.R.L Petition Expedited Declaratory Ruling Rules & Regulations Implementing Tel. Prot. F.C.C. Rcd. 3442, 3446, ¶ (March 2014). FCC devised “Telemarketing Rule” requiring “prior written autodialed prerecorded telemarketing *6 6 17 99 calls.” In the Matter of Rules Regulations Implementing the Tel. Consumer Prot. Act of 1991, FCC Rcd. 1830, 1838 (2012) (emphasis added). The FCC exempts from written consent calls to wireless numbers if the call “delivers a ‘health care’ message made by, or on behalf of, a ‘covered entity’ or its ‘business associate,’ as those are defined in the HIPPA Privacy Rule.” C.F.R. § 64.1200(a)(2) (the “Healthcare Exception”). HIPPA defines health care to include “care, services, or supplies related to the health an individual.” C.F.R. § 160.103. It exempts its definition marketing all communications made “[f]or treatment an individual a health care provider… or direct or recommend alternative treatments” the individual. Id. 164.501. Sinai’s on the

pleadings, holding that text message qualified FCC’s Healthcare Exception. As initial matter, note that Court’s analysis was incomplete. It (correctly) determined text “deliver[ed] ‘health care’ message made by, of, ‘covered entity’ or its ‘business associate,’ as those are defined HIPPA Privacy Rule,” C.F.R. § 64.1200(a)(2). But it did not then go determine whether provided his express receive message. See id. ; see also Matter Rules & Regulations Implementing Tel. Prot. F.C.C. Rcd. ¶ n.481 (July 10, 2015) (“2015 Order”) (noting calls qualify Healthcare Exception “are exempt . . . written consent requirement but are still covered [TCPA’s] general consent requirement”).

Nonetheless, we affirm Court’s grounds that, considering “the facts situation,” text message did indeed fall within “the scope [Latner’s prior express] consent.” See F.C.C. Rcd. ¶ 11. Latner provided his phone number when he first visited WPMG 2003. He also signed consent form acknowledging receipt various privacy notices. A ‐ 130. signing this form, Latner agreed could share his information “treatment” purposes, privacy notices stated WPMG could use Latner’s information “to recommend possible treatment alternatives health related benefits services.” Considering circumstances, hold provided his express receiving single about “health related benefit[]” might have been interest him.

CONCLUSION

For foregoing reasons, AFFIRM December Court.

[1] 47 U.S.C. § 227 (b)(1)(A)(iii) provides that, “It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States…to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or prerecorded voice… to any telephone number assigned to a… cellular telephone service.”

[2] It is also possible that the District Court held that the text message fell under the TCPA’s Healthcare Treatment Exemption. The FCC introduced the Healthcare Treatment Exemption in 2015. It exempts companies from receiving consent from consumers before making certain health-related communications to them. In the Matter of Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 FCC Rcd. 7961, ¶147. It mandates that senders must not charge recipients for receiving health-related communications and must include an explicit opt-out option in any message. The order also narrows the scope of the required prior express consent under the TCPA, stating that for a recipient to have granted consent, “the call must be closely related to the purpose for which the telephone number was originally provided.” Id. , n. 474 (emphasis added). If that is the case, we hold that this exemption does not apply here because the FCC only introduced it after Mt. Sinai sent the flu reminder text message received by Latner. There is no language in the 2015 FCC order suggesting any intent to make the Exception retroactive, much less the justification for any asserted retroactivity, precluding its application in this instance.