July 1, 2022

Volume XII, Number 182

Advertisement
Advertisement

July 01, 2022

Subscribe to Latest Legal News and Analysis

June 30, 2022

Subscribe to Latest Legal News and Analysis

June 29, 2022

Subscribe to Latest Legal News and Analysis

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).

© Copyright 2022 Squire Patton Boggs (US) LLPNational Law Review, Volume XII, Number 67
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement

About this Author

Brent Owen Energy Litigation Attorney Squire Patton Boggs Denver, CO
Senior Associate

Brent Owen represents energy, mining, construction, consumer services, and political clients in high-stakes litigation at trial and on appeal. Brent’s college experience as a full-scholarship Division I offensive lineman allows him to appreciate the value of consistent hard work in achieving a favorable result.

His experience includes all aspects of litigation, including trials in both state and federal courts before judges and juries and in arbitration tribunals, including the International Chamber of Commerce and the American Arbitration Association. A former law clerk to the...

303-894-6111
Advertisement
Advertisement
Advertisement