In St. Clair v. CVS Pharmacy, Inc. 2016 WL 7489047, at *2 (N.D.Cal., 2016), Judge Chhabria denied a motion to dismiss a TCPA grounded in automated calls reminding of prescription refills.
Another strike against CVS’s argument is that the FCC has addressed automated prescription reminders in a different context. In addition to the two statutory exemptions to TCPA liability (“emergency purposes” and “prior express consent”), Congress has given the FCC authority to create other exemptions for automated calls to cell phones. See 47 U.S.C. § 227(b)(2)(C) (allowing the FCC to exempt automated calls to cell phones that are “not charged to the called party, subject to such conditions as the Commission may prescribe as necessary in the interest of the privacy rights this section is intended to protect”). Pursuant to this authority, the FCC has created an exemption for certain automated calls from health care providers, so long as those calls satisfy a list of strict criteria. See Declaratory Ruling and Order ¶¶ 144-148, In the Matter of Rules & Regs. Implementing the Tel. Consumer Prot. Act of 1991, 30 FCC Rcd. 7961, 8030-32 (2015) (“2015 TCPA Order”). Included among the types of calls subject to this exemption are “prescription notifications.” Id. ¶ 146. If, as CVS argues, prescription notifications fell as a blanket matter within the statutory emergency purposes exemption, there would have been no need for the FCC to create this additional exemption. Nor do cases applying the TCPA to prescription-related calls support CVS’s proposed interpretation of the emergency purposes exemption. CVS relies heavily on Roberts v. Medco Health Solutions, Inc., No. 4:15 CV 1368 CDP, 2016 WL 3997071 (E.D. Mo. July 26, 2016). Assuming, for argument’s sake only, that Roberts was correctly decided, it does not stand for the proposition that all prescription-related calls are categorically made for emergency purposes. It stands only for the proposition that five calls, after an analysis of the evidence relating particularly to those five calls, fell within the exemption at the summary judgment stage. See also Kolinek v. Walgreen Co., No. 13 C 4806 (N.D. Ill. Aug. 11, 2014) (rejecting the argument that prescription-related calls categorically fall within the emergency purposes exemption). Finally, the Ninth Circuit has instructed courts to take a common sense approach to TCPA liability. See Chesbro v. Best Buy Stores, L.P., 705 F.3d 913, 918 (9th Cir. 2012). CVS’s argument stands for the proposition that pharmacies are totally immune from liability for making automated calls about prescriptions, no matter how often the calls are made and no matter how many times the customer asks for them to stop. This defies common sense. The motion to dismiss is denied.