Two years ago, at the beginning of the COVID-19 pandemic, the Federal Communications Commission (FCC) issued a Declaratory Ruling on how calls and texts related to the pandemic could fit within the Telephone Consumer Protection Act’s (TCPA) emergency purposes exemption. The Last month, the Northern District of Texas Court ruled that a text message informing the recipient of the availability of free COVID-19 vaccines fit within this exemption.
In October 2021, the plaintiff in Horton v. Tarrant County Hospital District received a single, unsolicited text message from the public hospital district informing him that “everyone ages 12 and up is eligible for the COVID vaccine.” He sued for violations of the TCPA’s prohibition on autodialed calls and texts without proper consent and the prohibition on telephone solicitations to phone numbers on the National Do Not Call (DNC) Registry. The hospital district filed a motion to dismiss the ATDS claim on grounds that the text fits the emergency purposes exception and the DNC claim on the grounds that the text did not constitute a solicitation.
It is worth revisiting the FCC’s two conditions for claiming such an exemption: “First, the caller must be from a hospital, or be a health care provider, state or local health official, or other government official as well as a person under the express direction of such an organization and acting on its behalf. Second, 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.” In Horton, the Texas court determined that the COVID vaccine calls met these conditions and granted the motion to dismiss. It also granted the motion to dismiss on the DNC claim due to the fact that the text message was purely informational in nature.