Date: 01-03-2018

Case Style:

Case Number: 17-99-C

Judge: JOSÉ A. CABRANES

Court: United States Court of Appeals for the Second Circuit on appeal from the Southern District of New York (New York County)

Plaintiff's Attorney: Alex Burke

Defendant's Attorney: Stuart M. Gerslon

Description: The question presented is whether a flu shot reminder text
message sent by a hospital violated the Telephone Consumer
Protection Act (“TCPA”), 47 U.S.C. § 227.
This appeal from the United States District Court for the
Southern District of New York (Alvin K. Hellerstein, Judge), Plaintiff‐
Appellant David Latner (“Latner”) challenges the District Court’s
decision granting Defendants‐Appellants Mount Sinai Health
System, Inc.’s (“Mt. Sinai”) and West Park Medical Group, P.C.’s
(“WPMG”) motion for judgment on the pleadings.
In 2003, Latner went to a Mt. Sinai facility, WPMG, for a
routine overall health examination, and reviewed and filled out new
patient forms. He signed a New Patient health form containing his
contact information and an Ambulatory Patient Notification Record
that granted consent to Mt. Sinai to use his health information “for
payment, treatment and hospital operations purposes.”
In June 2011, Mt. Sinai hired a third party, PromptALERT,
Inc., to send mass messages on behalf of Mt. Sinai, including
transmitting flu shot reminder texts for WPMG. In November of that
year, Latner returned to WPMG and declined any immunizations.
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On September 19, 2014, he received the following text message
from WPMG:
Its flu season again. Your PCP at WPMG is thinking of you!
Please call us at 212‐247‐8100 to schedule an appointment for a
flu shot. (212‐247‐8100, WPMG).
A‐26. Latner did not receive any further text messages from
WPMG. In limited discovery below, Mt. Sinai stated that it sent flu
shot reminder texts to all active patients of WPMG who had visited
the office in the three years prior to the date of the texts; Latner’s
2011 visit fell within that timeline.
Latner filed suit, alleging that Mt. Sinai violated
§227(b)(1)(A)(iii) of the TCPA.1 On December 14, 2016, the District
Court granted Mt. Sinai’s motion for judgment on the pleadings and
dismissed the case. This timely appeal followed.
We review a district court’s order granting a defendant’s
motion for judgment on the pleadings de novo. Hayden v. Paterson,
594 F.3d 150, 160 (2d Cir. 2010). We accept all factual allegations in
the complaint as true and construe them in the light most favorable
to the non‐moving party. Id. We may affirm the decision of the
District Court for any reason supported by the record. Beal v. Stern,
184 F.3d 117, 122 (2d Cir. 1999).
1 47 U.S.C. § 227 (b)(1)(A)(iii) provides that, “It shall be unlawful for any person within the
United States, or any person outside the United States if the recipient is within the United
States…to make any call (other than a call made for emergency purposes or made with the prior
express consent of the called party) using any automatic telephone dialing system or prerecorded
voice… to any telephone number assigned to a… cellular telephone service.”
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The TCPA makes it unlawful to send texts or place calls to cell
phones through automated telephone dialing systems, except under
certain exemptions or with consent. 47 U.S.C. § 227(b)(1)(A)(iii).
Congress delegated authority to issue regulations under the TCPA
to the Federal Communications Commission (“FCC”). 47 U.S.C. §
227(b)(2). Prior express consent is an affirmative defense to liability
under the TCPA. The FCC first interpreted the TCPA’s prior‐express
consent provision in a 1992 Order implementing the TCPA, where it
concluded that “persons who knowingly release their phone
numbers have in effect given their invitation or permission to be
called at the number which they have given, absent instructions to
the contrary.” In the Matter of Rules and Regulations Implementing the
Tel. Consumer Prot. Act of 1991, 7 FCC Rcd. 8752, 8768‐69, ¶ 31 (1992).
In 2008, the FCC extended this proposition to cell phone numbers. In
the Matter of Rules and Regulations Implementing the Tel. Consumer
Prot. Act of 1991, 23 FCC Rcd. 559, 564 ¶ 9 (2008) (holding that
provision of cell phone numbers as part of hospital admissions
constituted prior express consent to receive calls relating to medical
debt). In 2014, the FCC clarified that “the scope of [an individual’s
prior express] consent must be determined upon the facts of each
situation.” Matter of GroupMe, Inc./Skype Commc’ns S.A.R.L Petition
for Expedited Declaratory Ruling Rules & Regulations Implementing the
Tel. Consumer Prot. Act of 1991, 29 F.C.C. Rcd. 3442, 3446, ¶ 11 (March
27, 2014).
In 2012, the FCC devised a “Telemarketing Rule” requiring
“prior written consent for autodialed or prerecorded telemarketing
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calls.” In the Matter of Rules and Regulations Implementing the Tel.
Consumer Prot. Act of 1991, 27 FCC Rcd. 1830, 1838 (2012) (emphasis
added). The FCC exempts from written consent calls to wireless cell
numbers if the call “delivers a ‘health care’ message made by, or on
behalf of, a ‘covered entity’ or its ‘business associate,’ as those are
defined in the HIPPA Privacy Rule.” 47 C.F.R. § 64.1200(a)(2) (the
“Healthcare Exception”). HIPPA defines health care to include
“care, services, or supplies related to the health of an individual.” 45
C.F.R. § 160.103. It exempts from its definition of marketing all
communications made “[f]or treatment of an individual by a health
care provider… or to direct or recommend alternative treatments” to
the individual. Id. at 164.501.
The District Court granted Mt. Sinai’s motion on the
pleadings, holding that the text message qualified for the FCC’s
Healthcare Exception. A‐210. As an initial matter, we note that the
District Court’s analysis was incomplete. It (correctly) determined
that the text message “deliver[ed] a ‘health care’ message made by,
or on behalf of, a ‘covered entity’ or its ‘business associate,’ as those
are defined in the HIPPA Privacy Rule,” 47 C.F.R. § 64.1200(a)(2).
But it did not then go on to determine whether Latner provided his
prior express consent to receive the text message. See id.; see also In
the Matter of Rules & Regulations Implementing the Tel. Consumer Prot.
Act of 1991, 30 F.C.C. Rcd. 7961, 8030, ¶ 143 n.481 (July 10, 2015)
(“2015 Order”) (noting that calls that qualify for the Healthcare
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Exception “are exempt from the . . . written consent requirement but
are still covered by the [TCPA’s] general consent requirement”).2
Nonetheless, we affirm the District Court’s judgment on the
grounds that, considering “the facts of the situation,” the text
message did indeed fall within “the scope of [Latner’s prior express]
consent.” See 29 F.C.C. Rcd. at 3446, ¶ 11. Latner provided his cell
phone number when he first visited WPMG in 2003. He also signed
a consent form acknowledging receipt of various privacy notices. A‐
130. In signing this form, Latner agreed that Mt. Sinai could share
his information for “treatment” purposes, and the privacy notices
stated that WPMG could use Latner’s information “to recommend
possible treatment alternatives or health‐related benefits and
services.” A‐139. Considering the circumstances, we hold that Latner
provided his prior express consent to receiving a single text message
2 It is also possible that the District Court held that the text message fell under the
TCPA’s Healthcare Treatment Exemption. The FCC introduced the Healthcare
Treatment Exemption in 2015. It exempts companies from receiving consent from
consumers before making certain health-related communications to them. In the
Matter of Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 FCC
Rcd. 7961, ¶147. It mandates that senders must not charge recipients for receiving
health-related communications and must include an explicit opt-out option in any
message. The order also narrows the scope of the required prior express consent
under the TCPA, stating that for a recipient to have granted consent, “the call must
be closely related to the purpose for which the telephone number was originally
provided.” Id., n. 474 (emphasis added). If that is the case, we hold that this
exemption does not apply here because the FCC only introduced it after Mt. Sinai
sent the flu reminder text message received by Latner. There is no language in the
2015 FCC order suggesting any intent to make the Exception retroactive, much less
the justification for any asserted retroactivity, precluding its application in this
instance.
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about a “health‐related benefit[]” that might have been of interest to
him.

Outcome: For the foregoing reasons, we AFFIRM the December 14, 2016
judgment of the District Court.

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Defendant's Experts:

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