The Middle District of Florida recently held that a defendant cannot invoke the “emergency purposes” exception to the TCPA if the defendant continues to send messages after the plaintiff has instructed the defendant to stop.  In Farhat v. Unique Healthcare Systems, Inc., the Plaintiff claimed that her healthcare provider had sent her four messages within a four-week period with regard to free COVID-19 testing at the Defendant’s locations.

The Defendant healthcare provider moved to dismiss, relying on a March 2020 declaratory ruling (DA 20-318) in which the FCC interpreted the TCPA’s emergency purposes exception to include a “call or text by a hospital, healthcare provider, or a government official transmitting content that is solely informational, made necessary because of the COVID-19 outbreak, and directly related to the imminent health or safety risk arising out of the COVID-19 outbreak.”  The Defendant claimed that the text messages it sent, which contained information regarding “medically administered testing information,” fell within the exception and thus could not serve as the basis for a violation of Federal Law.

Plaintiff opposed dismissal and argued that because she told the Defendant to stop sending her messages, the Defendant’s text messages were neither necessary nor served an emergency purpose.  In its opinion, the court cited several cases stating that a defendant cannot invoke the emergency purposes exception if the defendant continues sending messages after the plaintiff tells the defendant to stop.  The court reasoned that permitting the emergency purposes exception in situations like these would insulate a defendant from liability “who engages in the exact conduct—the transmission of unwanted text messages and calls—that the TCPA endeavors to eliminate.”

Before denying Defendant’s motion to dismiss, the court also rejected the Defendant’s arguments that a single text message cannot confer standing under Article III and that Plaintiff consented to the text messages.

Decisions like this will have a significant impact on healthcare facilities attempting to provide information regarding the COVID-19 pandemic and makes clear that healthcare providers cannot rely on the emergency purposes exception when sending all COVID-related correspondence.  Rather, healthcare facilities must be mindful of the TCPA requirements to ensure they are not in violation of the federal statute.