Narrow TCPA Healthcare Exemption Upheld by D.C. Circuit
On March 16, 2018, a unanimous panel of the US Court of Appeals for the District of Columbia Circuit issued its long-awaited and much-anticipated decision in ACA Int’l v. FCC, Case No. 15-1211. Though the Court vacated certain portions of the Federal Communication Commission’s 2015 omnibus declaratory ruling and order (2015 Omnibus Order) concerning the Telephone Consumer Protection Act (TCPA), the Court upheld the Commission’s approach regarding an exemption for time-sensitive healthcare calls. We represented one of the petitioners challenging the FCC Order, and all petitions challenging the order were consolidated in front of the DC Circuit. The DC Circuit’s 51-page opinion can be found here.
By way of background, in the 2015 Omnibus Order, the FCC created a healthcare exemption for wireless calls that involved an “urgent” healthcare purpose, including, but not limited to, appointment and exam confirmations, wellness checkups, hospital preregistration instructions, lab results, and prescription notifications. The FCC had previously exempted pre-recorded calls to landlines for these purposes in a prior order. For this exemption to apply to wireless calls, however, the messages could not include telemarketing or advertising content, the calls had to be free to the end-user, and callers would have to promptly honor opt-out requests, among other restrictions.
On appeal, the DC Circuit rejected petitioner Rite Aid’s arguments that the FCC exemption for selected healthcare-related calls was arbitrary and capricious and that it violated the Health Insurance Portability and Accountability Act (HIPAA). The Court also disagreed that all healthcare-related calls fall within an exemption, such as those with “telemarketing, solicitation, or advertising content, or which include accounting, billing, debt-collection, or other financial content ” because such calls “do not arise from the sorts of emergencies that would justify suspending the TCPA’s consent regime.” In short, the Court upheld the narrow exemption in the 2015 Omnibus Order and suggested that only the enumerated “exigent” purposes would fall within the exemption. To review the discussion of the healthcare exemption in the 2015 Omnibus Order, see pages 68-72 here.
The DC Circuit also addressed three additional rulings from the 2015 Omnibus Order.