Does a valid application of the “emergency purposes” exception to the consent requirements of the Telephone Consumer Protection Act (TCPA) trump a consumer’s instruction to cease sending messages pursuant to that exception? In Linda Farhat v. Unique Healthcare Systems, LLC d/b/a AFC Urgent Care, 2022 U.S. Dist. LEXIS 4800, Case No. 8:21-cv-1319-SMD-JSS, United States District Court for the Middle District of Florida, January 11, 2022, Judge Steven D. Merryday answered it does not.
As TCPAWorld reported, in March of 2020 – at the advent of the spread of the COVID-19 virus – the Federal Communications Commission’s (FCC) Bureau of Consumer and Governmental Affairs (Bureau) declared that the TCPA “emergency purposes” exception would cover certain COVID-19 related calls or texts. (https://tcpaworld.com/2020/03/23/fcc-rules-coronavirus-triggers-emergency-exception-for-tcpa-purposes-in-certain-cases0). Specifically, as Judge Merryday noted, the Bureau interpreted the exception to “include a call or text, by a hospital, healthcare provider, or a governmental official transmitting content that is ‘solely informational, made necessary because of the COVID-19 outbreak and directly related to the imminent health or safety risk arising out of…[that] outbreak.’”
AFC Urgent Care, as her healthcare provider, sent Ms. Farhat four text messages about free COVID-19 testing at AFC’s locations. Each message informed Ms. Farhat that responding “STOP” would cease future messages. However, when she did so, the messages continued and she brought a class action under the TCPA.
AFC Urgent Care moved to dismiss, noting that the Bureau ruling specifically covered messages regarding “medically administered testing information.” Thus, AFC claimed the text message about free COVID-19 testing “‘can never serve as the basis [for] a violation of Federal law.’”
Not so said Judge Merryday, who concluded that Ms. Farhat’s “STOP” instruction cut off AFC Urgent Care’s right to continue to rely on the “emergency purposes” exception. The Court reasoned that “[p]ermitting a defendant to invoke …[that] exception to ceaselessly text a cellular telephone subscriber who has instructed the defendant to stop would insulate from liability a defendant who engages in the exact conduct – the transmission of unwanted text messages and calls – that the TCPA endeavors to eliminate.”
Lesson learned – consent is the ultimate key and even an “emergency purpose” cannot justify ignoring a clear instruction to “STOP” sending.