Creating a split in authority, a Texas federal court determined that a text message providing information about a free COVID-19 vaccine was covered by the “emergency purposes” exception to the Telephone Consumer Protection Act’s (TCPA) consent requirement.
On October 20, 2021, Lucas Horton received a single text message from the Tarrant County Hospital District “want[ing] to let [him] know that everyone ages 12 and up is eligible for the COVID vaccine.”
He filed suit alleging that the message was sent without his consent in violation of the TCPA.
The hospital moved to dismiss, relying on the “emergency purposes” exception to the statute.
Granting the motion, U.S. Magistrate Judge Jeffrey L. Cureton looked to a Federal Communications Commission (FCC) declaratory ruling in March 2020 related to the COVID-19 pandemic, which established a two-part test for the COVID-19-related call or text to satisfy the emergency purpose exception. To qualify for this exception, (1) the caller must be from a hospital, a health care provider, a state or local health official, or a government official under express direction of such a health care organization, and (2) the “content of the call must be 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.”
There was no dispute that Defendant Tarrant County Hospital District, as a hospital, satisfied the first prong of the test, and the text at issue was sent “squarely” within the time frame of a national emergency declaration.
“On March 13, 2020, President Donald J. Trump proclaimed the Novel Coronavirus Disease (COVID-19) a national emergency,” he wrote. “The national emergency declaration is currently ongoing and was continued by President Joseph R. Biden and remained in effect when Defendant sent the text message to Plaintiff in October 2021. Because the nation was operating under an emergency declaration at the time Defendant texted Plaintiff its message, the text is cloaked in the protection of the emergency provision of the TCPA.”
Furthermore, the text at issue was “solely informational in nature” and did not solicit for any services or otherwise suggest that Horton use, obtain or hire the hospital for administration of the vaccine, Cureton added. Indeed, the communication simply informed Plaintiff that COVID-19 vaccines were available and that he was eligible to receive them.
“[T]he Court finds that Plaintiff has failed to state a TCPA claim against Defendant because, even taking Plaintiff’s allegations as true, as a matter of law Defendant’s text was sent within the timeframe of a national emergency declaration and the text satisfies the FCC’s two-pronged test for being an emergency under the TCPA.”
Nor was the court persuaded that the text ran afoul of the National Do Not Call (DNC) regulations because it was not solicitous in nature.
“[T]he express language of the text at issue is purely informative—it does not seek to entice Plaintiff to purchase, rent or invest in the COVID-19 vaccine or any other property, goods or service,” Cureton said. “Rather, the text provides blatant information about a free vaccine availability and eligibility.”
Adopting the findings and recommendation of the magistrate judge, a district court judge later dismissed the lawsuit against the hospital.
To read the order in Horton v. Tarrant County Hospital District, click here.
Why it matters: The Texas court decision stands in contrast to a recent order from Florida, where the court found that a plaintiff’s request to stop sending text messages about free COVID-19 testing locations trumps the emergency purposes exception.