On February 11, 2019, the Hon. Judge John Z. Lee issued an impactful opinion (msj opinion Case 114-cv-05602) in high-stakes class action litigation that has been pending for more than four years, ruling on a Motion for Summary Judgment that the Defendant’s faxed prescription requests were not unsolicited advertisements in violation of the Federal Telephone Consumer Protection Act (“TCPA”).
Here is some background on the case: Over the period of several months in 2013, the Defendant, a DME/pharmacy supplier, sent six prescription requests via facsimile to a doctor for breathing medication on behalf of a patient. Problem was, unbeknownst to the Defendant, the prescription requests were being sent to the wrong doctor.
Miami resident Adrian Abramovich certainly wasn’t laughing on Thursday May 10th, 2018 when the Federal Communications Commission (“FCC”) levied a $120 MILLION dollar fine on him for his alleged involvement in an illegal robodialing campaign. FCC Chairman Ajit Pai stated that Abramovich did not dispute that he had placed more than 96 million telemarketing robocalls over a three month period in 2016 without the recipient’s consent. Furthermore, Chairman Pai stated that Abramovich’s telemarketing campaign utilized caller ID “spoofing” which masks the calling party’s true phone number and causes the recipient’s caller ID to indicate that the call was being made by a local number. Abramovich’s telemarketing activities allegedly violated a variety of state and federal regulations; caller ID spoofing, for example, is expressly prohibited by the Florida Telemarketing Act, § 501.616(7).
With the record-breaking fine imposed on Abramovich, the FCC is sending a loud and clear message that it will not tolerate those individuals or entities that violate telemarketing laws. Any person or business engaged in telemarketing (be it a healthcare provider with a single telephonic sales representative or a business devoted to telemarketing with a 100 person call center) must heed the FCC’s unsubtle hint that enforcement activity of telemarketing laws is only heating up.
Health law is the federal, state, and local law, rules, regulations and other jurisprudence among providers, payers and vendors to the healthcare industry and its patient and delivery of health care services; all with an emphasis on operations, regulatory and transactional legal issues.