The TCPA generally prohibits the use of an “automatic telephone dialing system” to call wireless numbers without prior express consent. 47 U.S.C. § 227(b)(1)(A). The FCC may exempt from this statutory consent requirement calls that are “not charged to the called party,” subject to whatever conditions the FCC prescribes as “necessary” in the interest of consumer privacy rights. § 227(b)(2)(C). Parties aggrieved by a TCPA violation can recover US$500 in damages for each violation (i.e., each call), and treble damages for willful or knowing violations. § 227(b)(3).
Under HIPAA, covered entities and their business associates generally may not use or disclose protected health information (PHI) except for “treatment, payment, or health care operations.” 45 C.F.R. § 164.502(a)(1)(ii).
In its 2015 Order, the FCC exempted from the prior express consent requirement “certain non-telemarketing, healthcare calls” made to wireless numbers that are not charged to the called party.4 The FCC accepted that these types of calls—for instance, appointment and exam confirmations and reminders—are the kind of communications that consumers “desire, expect, and benefit from.”5 The FCC declined, however, to exempt from the consent requirement other healthcare-related calls including telemarketing, soliciting, advertising, billing, debt collection, or “other financial content.” The FCC reasoned that for these calls, “[t]imely delivery” is not “critical to a called party’s healthcare, and they therefore do not justify setting aside a consumer’s privacy interests in favor of an exemption.”6
The D.C. Circuit affirmed the FCC’s healthcare exemptionPetitioner Rite Aid challenged the 2015 Order, arguing that the FCC’s exemption for select healthcare-related calls conflicts with HIPAA and is arbitrary and capricious. Specifically, Rite Aid argued that the exemption should cover all healthcare-related calls, including calls with telemarketing, solicitation, advertising, accounting, billing, debt-collection, and other financial content. Rite Aid argued that HIPAA, together with applicable regulations and guidance from the U.S. Department of Health and Human Services (HHS), is “the exclusive source of federal law” with regard to the disclosure of PHI. As the D.C. Circuit noted, Rite Aid essentially argued that any partial exemption of healthcare-related calls from the TCPA consent requirement is unlawful because HIPAA supersedes the TCPA when it comes to the communication of healthcare information.7 The D.C. Circuit rejected this argument, finding that there is “no obstacle to complying with both the TCPA and HIPAA[,]” as “the two statutes provide separate protections.”8
The D.C. Circuit also rejected Rite Aid’s argument that the 2015 Order was arbitrary and capricious because it afforded a narrower exemption for...
