Reminders about the need for an eye exam do not always fall within the health care provider exemption of the Telephone Consumer Protection Act (TCPA) regulations, a federal court in Florida recently held.
Anthony Lawson filed suit against Visionworks of America (Visionworks), alleging that he received numerous text messages in 2020 reminding him that he was “overdue for [his] eye exam” and providing a link to schedule an exam.
He alleged that, on more than one occasion, he attempted to opt out of the texts, but the unwanted messages continued, even though he did not have an existing plan, subscription or appointment with Visionworks at the time the text messages were sent.
Visionworks filed a motion to dismiss the suit, arguing that the text messages were informational health care messages and not telephone solicitations or telemarketing within the meaning of the TCPA’s regulations.
U.S. District Court Judge Wendy W. Berger denied the motion, explaining that the exemption, in and of itself, does not mean that health care-related calls are not solicitations under the TCPA as a matter of law; instead, the question was whether the content of the call was a pretext for the sale of goods or services.
“At this stage of the case, the court is satisfied that [Lawson] has sufficiently alleged that [Visionworks’s] message, which reminded [Lawson] that he was overdue for an appointment and then offered to provide him that service—including steps for taking advantage of that offer—contained adequate indicia of pretext for commercial activity to proceed beyond the pleading stage,” the court wrote. “Simply put, the message was not purely informational, and [Visionworks] did stand to gain financially from a transaction with [Lawson] if he acted on the message.”
Alternatively, Visionworks asserted that Lawson failed to allege a violation of the TCPA because he did not precisely follow the company’s opt-out procedures.
In his complaint, Lawson alleged that, on multiple occasions, he replied to the texts he received “with the word STOP” but continued to receive messages. He included screenshots of the texts he received and his responses, which stated “STOP again[.]”
Visionworks argued that the inclusion of the word “again” demonstrated that Lawson neglected to follow the opt-out instructions and legally negated his attempt to opt out. The court disagreed.
“While the screenshots provided include the word ‘again’ in [Lawson’s] responses, he alleges that these are only a selection of the messages and responses involved, and he explicitly alleges that he texted the word STOP,” the court said. “Drawing all reasonable inferences in favor of [Lawson], it is certainly plausible that at some point he texted only the word STOP in response to [Visionworks’s] message before he began adding the word ‘again,’ which implies that he had already made the request at least once.”
The court denied the motion to dismiss.
To read the order in Lawson v. Visionworks of America, Inc., click here.
Why it matters
Content is not the only factor in classifying a call or text. As this case highlights, courts consider the totality of the circumstances, including the underlying purpose of the outreach, to determine application of the TCPA. In other words, simply because the content of a call or text appears to be informational or subject to an exemption on its face, does not mean it is. Companies should ask why the communication is being made in evaluating whether and what level of consent is needed to make the outreach.
This case is also a lesson in the importance of recognizing opt-out requests. As the FCC has held, consumers are permitted to opt out via any “reasonable” means. Companies may not require a specific method of opt-out, and this goes for “magic language” in opt-out commands as well. While the court did not address the FCC’s recent revocation order, this decision is consistent. For more information on the FCC’s Revocation Order and new revocation rules, click here.