TCPA Allows Private Right of Action. Because of this private right of action under the TCPA and the prohibition against autodialed text messages in the TCPA, there have already been some significant legal actions taken against both large—and smaller— companies who have failed to comply with the TCPA regulations on mobile communications and text messaging. Notably, in 2011, a class action lawsuit was brought against Domino’s Pizza for a text message campaign that the plaintiffs claimed was directed to consumers who had not previously consented to the communication. A similar case was brought against Papa John’s in 2012. Domino’s settled its TCPA class action suit in 2013 for just under $10 million. In 2013, Huffington Post was sued for sending out “news alerts” by text messaging at all times of the day and night, and not taking readers off their list when receiving requests to “UNSUBSCRIBE.” Robo-calls. Best Buy robo-calls that followed up on customer purchases that also described the “rewards program” were deemed an enticement to make future purchases and a violation of the TCPA. Chesbro v. Best Buy , 2012 WL 6700555, (9th Cir. 2012). On March 28, 2014, in Freddy D. Osorio v. State Farm Bank, F.S.B. , the Court of Appeals for the Eleventh Circuit determined that a party making autodialed and prerecorded calls to cellphone numbers may be liable under the TCPA even where: 1) the cellphone number has not been reassigned; or 2) the caller believes it has obtained consent. TCPA Intersection with HIPAA. The TCPA includes two regulatory exceptions for health care messages provided they are made by HIPAA covered entities or business associates. In 2014, there were several class action lawsuits alleging that prescription reminders violated the TCPA by sending automated or prerecorded calls or text messages without the required consent and without falling within a TCPA exception. The cases in this area highlight the distinction made between marketing and non-marketing communications. Calls and text messages received by an unintended recipient might result in an impermissible disclosure of protected health information and require breach notification. See July 10, 2015 FCC Ruling cited below for more details on compliance with the healthcare treatment exception. 45
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