Nope! The COVID-19 Emergency Exception Applies. Texas Judge Recommends Dismissal of Single-Text TCPA Claim
On October 20, 2021, the Tarrant County Hospital District texted a man in Richardson, Texas that “everyone ages 12 and up is eligible for the COVID vaccine.” Because the man reads TCPAWorld he knew all about the FCC’s “emergency” declaration for COVID-19, and so he shrugged and moved on with his day. Just kidding!
He sued pro se in small claims Court in Dallas, which got removed to a federal court in Fort Worth. And, he lost. Why?
Well let’s back up. As TCPAWorld reported in March 2020, the FCC Bureau of Consumer and Governmental Affairs issued a Declaratory Ruling recognizing that “the COVID-19 pandemic constitutes an ‘emergency’” under the TCPA. The “emergency” meant that state and local health offices could “lawfully communicate information about the novel coronavirus without violating federal law.” And, in fact, federal regulations provide that an emergency call or text is “one that is ‘made necessary in any situation affecting the health and safety’ of the public.” 47 C.F.R. § 64.1200(f)(4).
So fast forward to present-day, and the Court evaluating the Texan’s complaint about the vaccine text explained that the emergency exception applied:
Because the nation was operating under an emergency declaration at the time Defendant texted Plaintiffs its message, the text is cloaked in the protection of the emergency provision of the TCPA.
The Court also made short work of the Texas man’s self-serving (and counterfactual) “bald” assertions about the text:
Clearly, the text at issue is solely informational in nature, as it does not, as Plaintiff baldly asserts, solicit for ‘accounting services’ or otherwise suggest that Plaintiff use, obtain, or hire the Tarrant County Hospital District for administration of the COVID-19 vaccine.
A few important lessons here. First, read TCPAWorld. Second, don’t asserts claims where there is an emergency exception for the text or call at issue. Third, the liberal pleading standard is not so liberal as to allow “bald assertions” to pass for factual allegations. Oh, if you want more details, the case is Horton v. Tarrant County Hospital District, No. 4:22-CV-9-P, 2022 U.S. Dist. LEXIS 37487 (N.D. Tex. Feb. 4, 2022).