The Impact of SCOTUS Ruling - Facebook, Inc., v. Duguid
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
Dashboard Template
The Impact of
Month XX, 2020
SCOTUS Ruling
Facebook, Inc.,
v. Duguid
On TCPA
Before
Facebook, Inc.,
v. Duguid,
592 U. S. ____ (2021)
For many years, health plans
and providers called and
No Exception from the
texted individuals at their peril TCPA for Healthcare-
about health care matters,
risking class action lawsuits Related Text Messages
under the federal Telephone
Consumer Protection Act of The FCC said:
1991 (TCPA).
First, if healthcare-related calls really
The TCPA imposes restrictions are so welcomed by consumers,
on making calls using an getting consent should be easy.
“automatic telephone dialing
system” without the prior Second, no exemption for healthcare-
express consent of the party related calls is appropriate just because
called. Unlawful uses of auto- the content of those calls is also
dialers may result in penalties regulated by HIPAA.
up to $1,500 per violation or
three times the plaintiffs’ actual
monetary losses. “HIPAA regulates the content of
communications (to ensure the
Health Plans repeatedly sought
privacy of patient information)
exemptions from the FCC for
health care-related calls and
whereas the TCPA regulates the
text messages. methodology of the communication
(to restrict calls and texts made
The FCC repeatedly said no. using an auto dialer or an artificial
or prerecorded voice, and made
without the prior express consent of
the called party.”
22
‹#›
Facebook v. Duguid, 592 U. S. ____ (2021)
In 2014, Noah Duguid received several
Many of us questioned login-notification text messages from
whether the TCPA applied Facebook, alerting him that someone
had attempted to access the Facebook
to calls placed and text account associated with his phone
messages sent to known number from an unknown browser.
recipients for population Facebook has a security feature that
health purposes, but the sends users “login notification” text
answer was far from clear. messages when an attempt is made to
access their account from an unknown
device or browser.
The TCPA applies to calls and texts
using an “automatic telephone Users must opt-in to the service.
dialing system,” which is defined as Duguid never had a Facebook account
a piece of equipment with the and never gave Facebook his phone
capacity “to store or produce number.
telephone numbers to be called, The question before the Court was
using a random or sequential whether the definition of an automatic
number generator,” and to dial telephone dialing system encompasses
those numbers. equipment that does not “us[e] a
Some Courts of appeal held that random or sequential number
auto dialers need only have the generator” but can “store” and dial
capacity to “store numbers to be telephone numbers randomly once
called” and “to dial such numbers those known numbers are stored into
automatically.” the equipment.
On April 1, 2021, the United States Supreme Court changed all
of this for health plans and providers who want to send text
messages to known individuals – whether or not they are
current members or patients – en masse.
33
‹#›
must use a
random or sequential number
generator.
Health Plans have yet to
catch up.
For example, one health plan presumes that its vendors are using autodialers
within the meaning of the TCPA “absent compelling proof to the contrary by
the vendor” and vendors must provide evidence of compliance with the TCPA
via documented processes, including written policies, procedures, and
program documents, which must be maintained and provided to the plan
upon request.
One suggestion for handling is to having the policies and procedures state
that the vendor’s equipment does not use a random or sequential number
generator in sending text messages to individuals, and therefore is not
subject to the TCPA according to Facebook v. Dubuid, 592 U. S. ____ (2021).
44
‹#›State Laws Still Apply.
Such state laws are generally not preempted by the TCPA if they are
more restrictive. See 47 U.S.C. § 227(f)(1)
California
Prohibits an entity or person conducting business in California from transmitting
a “text message advertisement.” CAL. BUS. & PROF. CODE § 17538.41. A “text
message advertisement is a message, the principal purpose of which is to
promote the sale of goods or services, or to promote a political purpose or
objective, to the recipient, and consisting of advertising material for the lease,
sale, rental, gift offer, or other disposition of any realty, goods, services, or
extension of credit, or advertising material for political purposes.” Moreover,
the statute explicitly excludes text messages transmitted at the direction of a
person or entity offering the service if the subscriber is offered an opt-out, CAL.
BUS. & PROF. CODE § 17538.41(2)(b).
Connecticut
Prohibits “telephonic sales calls” made without the “prior express written
consent” of the called party. Conn. Gen. Stat. § 42-288a.
Illinois
815 ILCS 413/1 et seq., that prohibits calls between 9 p.m. and 8 a.m. by live
operators to solicit the sales of goods or services, and that appears to cover
text messages.
New Jersey
Prohibits the sending of an unsolicited advertisement via text message to any
New Jersey resident if the message will cause the called party to incur a charge
or a deduction from a
messaging allocation. N.J. Many other states have similar mini-TCPA laws
Stat. § 2A:65D-1 et seq. and do-not-call laws, e.g.:
Rhode Island Arizona (A.R.S. §§ 13-2919, 44-1271)
Gen Laws 5-61-3.6, also Arkansas (A.C.A. § 4-99-401 et seq.)
Georgia (O.C.G.A. § 46-5-27)
prohibits text message Indiana (Ind. Code 24-4.7.1.1 et seq.);
advertisements without Minnesota (Minn. Stat. § 325E.27 et seq.)
consent, and excludes Mississippi (Miss. Code Ann. § 77-3-701 et seq.)
messages sent by Pennsylvania (73 P.S. §§ 2241 et seq., 2250.1 et seq.)
businesses with existing Rhode Island (R.I. Gen. Laws § 5-61-1 et seq.)
relationships with South Dakota (S.D. Codified Laws § 37-30-1 et seq.)
subscribers who are offered Tennessee (Tenn. Code Ann. § 47-18-1501 et seq.)
Utah (Utah Code Ann. § 13-25a-101 et seq.).
an opt-out process.
55
‹#›Florida & Other ”Hybrid” States
FL Stat. § 501.059 Other states have laws like Florida’s that
(2) Any telephone solicitor who
makes an unsolicited telephonic address related practices but are not
sales call to a residential, mobile, explicitly TCPA laws or are “hybrid,”
or telephonic paging device (regulations address prohibited sales and
telephone number shall identify debt collection tactics) e.g.:
himself or herself by his or her • Louisiana (La. R.S. § 9:3562)
true first and last names and the • Massachusetts (940 CMR 31.06(9))
business on whose behalf he or • Vermont (8 V.S.A. § 2241)
she is soliciting immediately upon
making contact by telephone with
the person who is the object of the telephone solicitation.
(3)(a) If any residential, mobile, or telephonic paging device telephone
subscriber notifies the department of his or her desire to be placed on a “no
sales solicitation calls” listing indicating that the subscriber does not wish to
receive unsolicited telephonic sales calls, the department shall place the
subscriber on that listing. . . .
(4) No telephone solicitor [person who makes sales calls by, including, but not
limited to, use of automated dialing or recorded message devices] shall make or
cause to be made any unsolicited telephonic sales call to any residential, mobile,
or telephonic paging device telephone number if the number for that telephone
appears in the then-current quarterly listing published by the department. . . .
(5) A telephone solicitor or other person may not initiate an outbound telephone
call, text message, or voicemail transmission to a consumer, business, or donor
or potential donor who has previously communicated to the telephone
solicitor or other person that he or she does not wish to receive an
outbound telephone call, text message, or voicemail transmission:(a) Made
by or on behalf of the seller whose goods or services are being offered; . . .
(b) Nothing herein prohibits the use of an automated telephone dialing system
with live messages if the calls are made or messages given solely in response to
calls initiated by the persons to whom the automatic calls or live messages are
directed or if the telephone numbers selected for automatic dialing have been
screened to exclude any telephone subscriber who is included on the
department’s then-current “no sales solicitation calls” listing or any unlisted
telephone number, or if the calls made concern goods or services that have
been previously ordered or purchased. . . .
66
‹#›Ready to engage your members via text?
www.consejosano.com
Kim Howell, VP of Growth
kim@consejosano.com
77
‹#›You can also read
