On January 13, 2017, the United States District Court for the Central District of California granted Blue Shield of California’s motion for summary judgment in a case on whether the insurer violated the Telephone Consumer Protection Act (“TCPA”).  The TCPA makes it unlawful “to make any call (other than a call made . . . with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice . . . to any telephone number assigned to a . . . cellular telephone service.”  See 47 U.S.C. § 227(b)(1)(A)(iii).  Additionally, FCC regulations prohibit “any telephone call that includes or introduces an advertisement or constitutes telemarketing, using an automatic telephone dialing system or an artificial or prerecorded voice,” unless the call is made “with the prior express written consent of the called party.”  See 47 C.F.R. § 64.1200(a)(2). 

The plaintiff — Shannon Smith — received an automated, pre-recorded call from Blue Shield of California, her health insurer.  The message alerted Ms. Smith that the insurer had mailed her information about her health insurance and that it was time to review her health insurance options.  Ms. Smith alleged that the call violated the TCPA and the FCC regulations because (1) the call constituted telemarketing, and (2) Blue Shield of California had not obtained Ms. Smith’s express written consent to make the call.  The insurer argued that its call was lawful because (1) the call did not constitute telemarketing, and (2) the prior express — though unwritten — consent it had obtained from Ms. Smith was sufficient for its non-telemarketing call.  According to the Court, because Ms. Smith did not contest that she had provided prior express — though unwritten — consent, the case turned on whether the call constituted telemarketing, which would have required Blue Shield of California to have obtained express written consent.

The Court determined that the call was purely informational and did not constitute telemarketing.  In reaching that conclusion, the Court noted several things.  First, the call’s content was virtually identical to guidance the Centers for Medicare and Medicaid Services issued for how health insurers could properly contact their customers.  Additionally, the call did not “unequivocally evoke or reference commerce,” which is typical in cases that have concluded that calls constituted telemarketing or advertising.  In the end, it simply made “no sense to the Court that a single call tracking Blue Shield [of California]’s mandatory communications regarding insurance enrollment and renewal would expose Blue Shield [of California] to millions of dollars of liability under the TCPA.”  Consequently, the Court granted the insurer’s motion for summary judgment.

A copy of the Court’s decision is available here.