The Scope Of TCPA Consent

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Telephone Consumer Protection Act (TCPA): Fines & Penalties - JookSMS

Readers of our blog may recall a piece from last year in which we discussed a
Telephone Consumer Protection Act lawsuit pending in the United
States District Court for the Middle District of Florida. At issue
in Morris v. Lincare, Inc., among other
things, was whether Morris’ prior express written consent
provided to Lincare’s predecessor extended to Lincare as the
successor entity. Morris and Lincare filed motions for summary
judgment on several issues, including the scope of TCPA consent.
Below, we discuss the Court’s decision in further detail.

Transferability of TCPA Consent

Due to a medical condition, Morris purchased necessary medical
supplies from American HomePatient (“AHP”). As part of
AHP’s purchase process, Morris signed a consent form agreeing
to receive calls from AHP and others on AHP’s behalf. In 2018,
Lincare acquired AHP and made prerecorded voice calls to Morris and
other consumer telephone numbers acquired from AHP. Morris then
sued on behalf of herself and a putative class alleging that
Lincare’s placement of prerecorded messages to her cell phone,
without her consent, violated the TCPA. After the Court granted
class certification, Lincare moved for summary judgment claiming,
among other things, that Morris provided prior express consent
under the TCPA to be contacted regarding medical supplies. In
response, Morris argued that she provided consent to AHP, not Lincare, and that the calls from
Lincare were intended to encourage the purchase of supplies and
were not exempt under the TCPA’s implementing regulation which
exempts prerecorded calls that deliver a “health care”
message.

In granting summary judgment to Lincare, the
Court evaluated whether Lincare had adequate TCPA consent to place
prerecorded calls to Morris regarding medical supplies. Because the
prerecorded calls to Morris bore some relation to her initial
provision of consent, the Court found that the calls placed to
Morris fell within the scope of the consent she provided. Next, the
Court analyzed whether Morris’ provision of consent to AHP,
Lincare’s predecessor, extended to Lincare. Because Morris
consented to receive calls from or on behalf of AHP, the Court
agreed with Lincare that it had proper consent under the TCPA to
contact Morris regarding her medical supplies and, as such, awarded
summary judgment to Lincare.

Why Does Lincare Matter to Your Business?

In arriving at its decision, it is important to note that the
Court also found that the prerecorded calls to Morris were health
care-related and thus, Lincare only needed prior express consent,
not prior express written consent, to contact
Morris. Because Lincare had prior express consent, the Court found
that the prerecorded calls were exempt under the TCPA’s
regulation exempting health care-related prerecorded calls.
Notably, Lincare relied on two rulemakings from the Federal
Communications Commission (“FCC”) which, after the
Supreme Court’s recent decision allowing district courts to
independently evaluate agency rulemakings, are certain to be
challenged in other TCPA lawsuits.