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April 01, 2018

DC Circuit Upholds Narrow TCPA Exemption for Healthcare Providers

Lewis Wiener, Eversheds Sutherland, Washington, DC and Frank Nolan, Eversheds Sutherland, New York, NY

Our article, “Recent TCPA Developments for Healthcare Providers,” which was published in the March issue of the ABA Health eSource1 explained how the Telephone Consumer Protection Act (TCPA) uniquely impacts the healthcare industry. Among the areas highlighted was the Federal Communications Commission’s (FCC) 2015 Order, in which the FCC limited the exemption of the TCPA to certain healthcare-related communications. The FCC’s TCPA Order was appealed to the US Court of Appeals for the District of Columbia, and a decision was pending at the time of publication of the prior article. On March 16, 2018, the DC Circuit issued its decision on the FCC’s TCPA Order (more than 16 months after oral argument). Although the DC Circuit struck down certain provisions of the 2015 TCPA Order, 2 the court upheld the provisions that relate specifically to the healthcare industry.

The FCC’s 2015 TCPA Order limited the exemption for healthcare provider calls to wireless numbers “for which there is exigency and that have a healthcare treatment purpose.”3 Specifically, the scope was limited to calls for non-marketing purposes, including appointment and exam confirmations and reminders, wellness checkups, hospital pre-registration instructions, pre-operative instructions, lab results, post-discharge follow-up intended to prevent readmission, prescription notifications, and home healthcare instructions. The exemption does not cover calls “that include telemarketing, solicitation, or advertising content, or which include accounting, billing, debt-collection, or other financial content.”4

On this issue, the DC Circuit upheld the 2015 TCPA Order, finding that the FCC was empowered to draw a distinction between different types of calls.5

The DC Circuit’s decision is not yet final. Either side may ask for reconsideration by the Circuit en banc. A petition for rehearing must be made within 45 days (given that the US government is a party), and either side may file a petition for certiorari to the US Supreme Court within 90 days of entry of judgment of this decision or an en banc decision, should one be issued.

Assuming that the DC Circuit’s decision becomes final, healthcare providers must continue to abide by the narrow exemption in the FCC’s 2015 TCPA Order regarding exigent and healthcare-related calls to cell phones. Providers should continue to implement and enforce policies as explained in the prior article and remain aware of the method and content of communications, including those made by third parties on their behalf.

  2.  The DC Circuit struck down the FCC’s definition of autodialer and its one-call “safe harbor” relating to reassigned cell phone numbers.
  3.  Rules & Regs. Implementing the Tel. Cons. Prot. Act of 1991, 30 FCC Rcd. 7961 (2015).
  4.  Id.
  5.  ACA Int’l v. Federal Comm’s Comm., No. 15-1211, --- F.3d ---, 2018 WL 1352922 (D.C. Cir. Mar. 16, 2018).

Lewis Wiener

Eversheds Sutherland

Lewis Wiener is a partner at Eversheds Sutherland (US) LLP in Washington, D.C. where he co-chairs the firm’s global Financial Services Disputes and Investigations (FSDI) Practice Group and heads the domestic (US) Telephone Consumer Protection Act (TCPA) counseling and defense group. He may be contacted at [email protected]

Frank Nolan

Eversheds Sutherland

Frank Nolan is a counsel at Eversheds Sutherland (US) LLP in New York where he is a member of the firm’s domestic (US) Telephone Consumer Protection Act (TCPA) team and defends companies in class action litigation under the TCPA and other consumer protection statutes. He may be contacted at [email protected]