Request to Stop Text Messages Trumps Emergency Exception

TCPA Connect

A plaintiff’s request to stop sending text messages trumps the “emergency purposes” exception to mandated consent under the Telephone Consumer Protection Act (TCPA), a Florida federal court recently ruled.

Linda Farhat sued AFC Urgent Care after she received four text messages about “free” COVID-19 testing at AFC’s locations. The messages informed Farhat that responding “STOP” would cease future messages.

However, AFC continued to send messages to Farhat after she responded “STOP.”

AFC moved to dismiss the putative TCPA class action. It pointed to a March 2020 declaratory ruling from the Federal Communications Commission (FCC) related to the COVID-19 pandemic.

In DA 20-318, the agency interpreted the “emergency purposes” exception under 47 U.S.C. § 227(b)(1) to include a call or text by a hospital, health care provider or 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.”

AFC argued that the text messages about COVID-19 testing fell within this exception and could not serve as the basis for a TCPA violation.

Farhat countered that because she instructed AFC to stop sending messages, the subsequent texts neither were “necessary” nor served an emergency purpose.

U.S. District Court Judge Steven D. Merryday agreed with the plaintiff, denying the motion to dismiss.

“Permitting a defendant to invoke the ‘emergency purposes’ exception to ceaselessly text a cellular telephone subscriber who has instructed the defendant to stop would insulate from liability a defendant who engages in the exact conduct – the transmission of unwanted text messages and calls – that the TCPA endeavors to eliminate,” he wrote.

Merryday cited similar decisions from federal courts in California, Georgia and Rhode Island, all of which “reason[ed] persuasively that a defendant cannot invoke the ‘emergency purposes’ exception if the defendant continues to send messages after the plaintiff has instructed the defendant to stop.”

As a fallback, AFC cited to Salcedo v. Hanna, a 2019 decision from the Eleventh U.S. Circuit Court of Appeals where the panel held that receipt of a single text message failed to establish standing for a TCPA suit.

“Although a single text message cannot confer standing, four text messages sent in contravention of an instruction to ‘STOP’ plausibly confer standing and certainly warrant an opportunity to develop the record,” Merryday wrote.

AFC also told the court that Farhat consented in writing to receive text messages. But the court found that Farhat plausibly alleged that she revoked her consent by instructing AFC to stop sending messages.

To read the order in Farhat v. Unique Healthcare Systems, LLC, click here.

Why it matters: The Florida federal court decision provides a cautionary tale about the limits of the “emergency purposes” exception. While the exception effectively allows a caller to circumvent the TCPA’s consent requirements, the lack of consent does not prevent a call recipient from ending the contact by making a stop or do not call request. In other words, reliance on the emergency purposes exception is not a free pass to call or text recipients who decline to receive such messages. Failure to acknowledge a recipient’s request can expose the caller to TCPA liability.

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