Second Circuit Says Sending "Robo" Texts Does Not Violate the Telephone Consumer Protection Act (TCPA)

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Last month, in Latner v.Mount Sinai Health System, Inc, the Second Circuit Federal Court of Appeals in New York City ruled that the Mount Sinai Health System did not violate the Telephone Consumer Protection Act (TCPA) by sending automated flu text messages to its patients within its own health care network.

At present, health care systems around the country are becoming increasingly reliant on automated systems in order to relay important messages to their patients particularly where many of these systems currently have thousands of patients. And, when there is a current national health care crisis such as the omnipresent raging flu epidemic sweeping the United States, the need for medical
systems to get out information to their network of patients becomes even more critical. The current flu epidemic is in terms of both hospitalizations and deaths one of the highest ever recorded according to the Center for Disease Control.

The basic facts in Latner are as follows: In 2003, Latner had visited a Mount Sinai facility for certain medical treatment. In the course of his treatment, the factual record before the federal trial court indicated that Latner, on his first visit, signed a new patient health form containing certain contact information and other forms as part of the standard intake process. In June of 2011, according to the record of the Court, Mt. Sinai hired a company called "PromptALERT", Inc. to send mass messages to the patients of Mount Sinai including flu shot reminders. The message went like this: "Its flu season again. Your PCP at WPMG is thinking of you! Please call us at 212-247-8100 to schedule an appointment for a flu shot( 212-247-8100)." In this case, there had been no evidence presented by Latner at the trial level suggesting that he had withdrawn his previous consent. To a reasonable person, this would seem like an innocuous message, right? David Latner didn't think so.

Believing at all times that his federal rights were violated, Latner filed a class action lawsuit against Mt. Sinai for violating his rights under the TCPA. His case was based on only one text message received from Mount Sinai. Briefly, the TCPA is a federal law that makes it unlawful to send texts or place calls to cell phones through automated dialing systems (often called "robo" calls or texts) except when express consent is provided in certain situations. The question of consent is always the first question to be considered when a plaintiff is seeking to get damages under this federal act. In 2012, however, the Federal Communications Commission( FCC) passed further regulations pertaining to the Act which exempted the requirement of prior express consent for those calls or texts placed to wireless cell numbers if the call "delivers a health care message made by, or on behalf of, a covered entity or its business associate consistent with the requirements of all HIPPA privacy rules."

In creating this health care exception, the FCC recognized that automated health messages work to educate patients, promote adherence to treatment plans, lead to better healthcare outcomes and serve the larger public interest, particularly in times, such as the present, when 44 out of 50 states are facing a flu epidemic. Moreover, within a healthcare system already strapped for resources, the FCC recognized that the use of "robo" calls are particularly effective as a vehicle for getting important healthcare information to patients given the fact that 95 percent of the public has a cellphone.

After losing in the Federal District Court, Latner subsequently appealed to the Second Circuit. The Second Circuit held that by Latner giving his cell phone number to Mt. Sinai, in the first instance, and where Latner "consented to Mt. Sinai to use his healthcare information for "payment, treatment, and hospital operations purposes" there was no violation of the TCPA. In anchoring its decision, the Second Circuit found that Latner consented to such texts under the consent section which specified for "treatment" purposes. And, by doing so, Latner did indeed provide express consent to receive a "single text message about a health-related benefit that might have been of interest to him." The reason behind the rule by the Second Circuit was not to allow every "robo" call to be turned into a lawsuit as Latner unsuccessfully tried to do in this case. The Second Circuit, among other federal courts, seem to be pushing back on plaintiff's claims particularly where consent exists or where plaintiffs, like Latner, have previously "invited" calls through some kind of writing.

The Latner Case is surely nothing to sneeze at. If anything, it serves to further enforce and perhaps expand the FCC's 2012 health care exception to the TCPA and the social policies behind those regulations to otherwise encourage valuable calls and text messages providing patients with important health care reminders. By obtaining, maintaining and updating all consent contacts, your business or organization can continue these communications without facing an epidemic of a TCPA-based litigation.

Attorney David S.Katz is the founder and managing partner of the Katz Law Group, P.C., located in Marlborough, Massachusetts.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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