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. TCPA Declaratory Ruling and Order. On July 10, 2015, the FCC released its ruling with clarification of a number of TCPA issues including the definition of autodialer, liability for calls made to reassigned phone numbers, a consumer right to revoke consent by any reasonable means, and new exceptions for financial and healthcare related calls. The FCC invoked its authority under the TCPA to exempt from the consent requirement various “free to end user” communications (no charge to recipient of call) that are “pro consumer messages“ made by certain entities regarding time sensitive financial information and health treatment related messages. 46
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