Antitrust Law Daily Wrap Up, PRIVACY—DNev: TCPA Claims Proceed Against Eye Care Provider over Text Messages, (May 30, 2013)

By Tobias J. Gillett, J.D., LL.M.

Telephone Consumer Protection Act (TCPA) claims arising out of text messages sent by an eye care provider have survived a motion to dismiss or in the alternative for summary judgment. The federal district court in Reno, Nevada, has ruled that a patient of the provider can proceed with her class action claims (Carlson v. Nevada Eye Care Professionals, May 28, 2013, Jones, R.).

According to the complaint, Mia Carlson and thousands of other individual received a text message stating that “your eye doctor @ Nevada Eye Care wants to improve your eyes.” Carlson filed a class action lawsuit against Nevada Eye Care Professionals, Nevada Eye Care Professionals Stein & Little, Ltd., Communitect, Inc., and Smile Reminder, asserting that the messages violated the TCPA. The defendants filed a motion to dismiss or for summary judgment.

The court denied the motion to dismiss, finding Carlson’s claim to be sufficiently pled. Carlson had alleged that the defendants sent an automated text message to her cell phone on a specific date without her consent, and the court found the Federal Communication Commission’s interpretation of the TCPA as reaching text messages to be reasonable.

The court also denied the motion for summary judgment. The defendants had argued that Carlson had signed a consent that incorporated a “notice of privacy practices” that stated “Nevada Eye Care may contact [you] to provide appointment reminders or information about treatment alternatives or other health-related benefits and services that may be of interest to [you].” However, Carlson signed the consent on January 4, 2010, and the consent did not specify whether it referred to a January 1, 2008 notice of privacy practices or a January 1, 2010, notice. Although consenting to January 1, 2010, notice “would have included consent to be contacted for advertisement of eye care services in general,” the defendants had not provided a copy of the January 1, 2008, notice. Moreover, Carlson claimed not to have received any notice of privacy practices. Therefore, disputed issues of fact remained regarding whether Carlson received a notice and, if so, which notice she received.

The court also found that the characterization of the message as an appointment reminder rather than an advertisement of services was an issue that had to be argued to the jury. The court rejected the defendants’ argument that providing a telephone number amounted to consent to be called for any purpose, noting that “[a] patient providing a telephone number to a health care provider only impliedly consents to be contacted for reasons related to particular care the patient has received or solicited, not for general marketing purposes.”

Finally, the court rejected the contention that Carlson had not provided evidence to show that the defendants used automated dialing equipment to send the message. Carlson’s allegations regarding the content of the message were sufficient “circumstantial evidence to support an inference of the use of an automated system in this case.” The court noted that “[t]he abbreviations within and format of the text message strongly imply mechanical generation from some kind of database,” and that “it was potentially (and likely) ‘sequentially generated’ under the statute, i.e., dialed from a list of numbers in a database.”

The court observed, however, that the TCPA requirement that a communication must contain an opt-out notice was not in effect at the time Carlson claimed to have received the text message, and therefore she could not prevail on that theory.

The case is No. 2:13-cv-00364-RCJ-PAL.

Attorneys: David S. Lee (Lee, Hernandez, Landrum, Garofalo & Blake) for Mia Carlson. Joseph R Ganley (Hutchison & Steffen) for Nevada Eye Care Professionals.

Companies: Nevada Eye Care Professionals; Nevada Eye Care Professionals Stein & Little, Ltd.; Communitect, Inc.; Smile Reminder

Cases: Privacy NevadaNews