TCPA Ruling: Text Asking Patient To Rate The Doctor

By Sheila Raftery Wiggins

A California federal court ruled that a text asking a patient to rate the doctor – sent minutes after the examination by a company that contracts with the health care provider to send Patient Satisfaction Surveys – does not alone satisfy an inference that the text was sent by an Automatic Telephone Dialing System (“ATDS”) within the definition of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”). 

The text stated: “Hello, you recently visited Larry Dodge, M.D.  Please provide your rating.  https://x.rater8.com/umg3sy.  To unsubscribe: https://x.rater8.com/ujhrq7.”  The plaintiff-patient alleged that defendant’s computer system obtains patient appointment information in order to process these types of text messages.  The plaintiff-patient alleged facts to support an inference that the text message was sent by an ATDS including that: (1) the nature of the message – asking for a rating for a doctor – was generic or promotional, (2) the ability to respond to the text – by hitting an “unsubscribe” link – was characteristic of an ADTS, and (3) the message was sent from a SMS short code, suggesting an ATDS.

Under the TCPA, it is unlawful for any person to make any call using an ATDS to a telephone number assigned to a cellular telephone service.  To state a claim in a lawsuit, the plaintiff must plausibly allege that: (1) defendant called or texted a cellular telephone number, (2) using an ATDS, and (3) without the recipient’s prior express consent.

The U.S. Supreme Court recently ruled in Facebook v. Duguid, 141 S. St. 1163 (2021), that to qualify as an ATDS, a device must have the capacity either to store a telephone number using a random or sequential generator or to produce a telephone number using a random or sequential number generator.  Thus, a claim under Section 227(b) of the TCPA hinges on whether the equipment used a random or sequential number generator.

Applying the Supreme Court’s Duguid analysis, the California federal court ruled that: (1) the nature of this solitary text and the relationship between the parties indicate the text was not sent using an ATDS and (2) the allegations indicate that the plaintiff-patient was targeted with the single text message.  Wilson v. Rater8, LLC, et al., No. 20-cv-1515, 2021 WL 4865930 (Oct. 18, 2021).  The plaintiff-patient’s claims were dismissed.  This case is consistent with a growing line of decisions addressing the ATDS pleading requirements after the Supreme Court’s Duguid decision.

Lesson: Expect more cases testing the parameters of what constitutes an ATDS, especially as technology continues to evolve.