New U.S. Supreme Court Decision May Expand Health Plans’ Ability to Text Members Under the TCPA
The Telephone Consumer Protection Act of 1991 (TCPA) has restricted health plans’ ability to call or send text messages to cell phone numbers. The U.S. Supreme Court’s recent decision in Facebook, Inc. v. Duguid, 141 S. Ct. 1163 (2021) (“Facebook”) eases those restrictions by clarifying and narrowing the type of dialing equipment which falls within the TCPA’s definition of an automatic telephone dialing system (“autodialer”).
The TCPA generally makes it unlawful to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using an autodialer, or an artificial or prerecorded voice. The Ninth Circuit Court of Appeals had adopted an extremely broad interpretation of the definition of an autodialer, which potentially included anything from a smart phone to the equipment used by health plans. Marks v. Crunch San Diego, LLC, 904 F.3d 1041, 1053 (9th Cir. 2018), (“Marks”). The U.S. Supreme Court’s Facebook decision expressly overturned Marks and narrowed the definition of an autodialer.
Under Facebook’s narrower definition, the critical question is whether the equipment being used to make calls or send texts has the capacity to use a random or sequential number generator to store or produce telephone numbers. This is a highly technical, fact-specific question, and if the answer is no—i.e., if the equipment does not have the capacity to use a random or sequential number generator—then those health plans will now have the green light to text members or make live calls to cell phone numbers.
While Facebook did significantly limit the types of equipment that come within the definition of an autodialer, health plans must still be cautious and thorough when evaluating whether the equipment they (or their vendor) are using to make calls and send texts falls within that definition. Furthermore, Facebook had no impact on the TCPA’s restrictions on calls made using a pre-recorded or artificial voice, or calls and texts to phone numbers which are listed on the National Do Not Call Registry. Therefore, health plans still cannot make robocalls to cell phone numbers unless they have member consent.
For more information about the TCPA or calling and texting in a post-Facebook world, please contact Megan Rowe.