In Carlson v. Nevada Eye Care Professionals, 2013 WL 2319143 (D.Nev. 2013), Judge Jones denied a defendant’s Summary Judgment Motion brought on the basis that the Plaintiff had consented to receive the text messages sent by the Defendant.
Plaintiff and class representative Mia Carlson, f.k.a. Mia Shaughnessy, received the following text massage on her cell phone on December 5, 2012: SDFEF FRM:firstname.lastname@example.org MSG: Mia—your eye doctor @ Nevada Eye Care wants to improve your eyes. Please call us @ 702–633–2020 for an appt. (Compl. ¶ 1, Mar. 5, 2013, ECF No. 1). Thousands of other persons like Plaintiff received similar automated text messages without prior express consent. (Id. ¶ 3). Plaintiff sued Defendants Nevada Eye Care Professionals (“NECP”), Nevada Eye Care Professionals Stein & Little, Ltd. (“NECP S & L”), Communitect, Inc., d.b.a. Solutionreach, and Smile Reminder in this Court, bringing a Rule 23 class action based upon violations of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, requesting damages and injunctive relief. Defendants NECP, NECP S & L, and Communitect have moved to dismiss for failure to state a claim or, in the alternative, for summary judgment.
The Court denied the summary judgment motion.
The Court also denies the motion under Rule 56(a). Movants argue that Plaintiff consented to receive calls, i.e., that Plaintiff signed a Consent that incorporated a Notice of Privacy Practices that in turn stated that “Nevada Eye Care may contact [you] to provide appointment reminders or information about treatment alternatives or other health-related benefits and services that may be of interest to [you].” (See Casey Aff. ¶ 11, Apr. 12, 2013, ECF No. 13–1, at 2 (quoting Notice sec. A, para. 1, fifth unnumbered subparagraph, Jan. 1, 2010, ECF No. 13–2, at 8) (emphasis added)). Plaintiff agreed to the terms described in the Notice. (See Consent, Jan. 4, 2010, ECF No. 13–2, at 6). Movants have satisfied their initial burden by adducing evidence showing that Plaintiff consented to be contacted not only in relation to follow-up appointments, but also for the purposes of advertisement of NECP’s services in general.FN1 [FN1. The emphasized text is important, be-cause the alleged call in this case does not appear to be related to any previous care. That is, it is not a follow-up message but a message soliciting Plaintiff’s business in general: “[Y]our eye doctor … wants to improve your eyes. Please call … for an app[ointmen]t.” The message contains no reference to any past treatment, appointments, or condition, or even any reference to any particular doctor or office location.”] ¶ In response, Plaintiff argues that she did not consent to any contact excepts as to followup appointments, that the text message violated the TCPA anyway because it did not include the name and telephone number of the sender or an automatized opt-out system, and that the HIPAA exception to the express, written consent requirement that Congress has adopted will not be effective until October 16, 2013. . . .¶ In summary, the Court denies summary judgment, because there remains a genuine issue of material fact over the scope of Plaintiff’s consent to be contacted. If she received no Notice, or if she received the 2008 Notice and the 2008 Notice did not include a provision similar to the 2010 Notice permitting the kinds of text messages here, Plaintiff’s claim must go to trial. ¶ In reply, Defendants argue that the message was an appointment reminder. The Court finds for the reasons already given, see supra note 1, that the characterization of the message as an appointment reminder must be argued to the jury. It is not clearly an appointment reminder and in fact appears not to be one. ¶ Nor does the Court accept the argument that simply providing one’s telephone number equates to consent to be called for any purpose. The purpose of the TCPA is to prevent unsolicited marketing calls. A patient providing a telephone number to a health care provider only impliedly consents to be contacted for reasons related to particular care the patient has received or solicited, not for general marketing purposes. The case law Defendants cite in fact confirms this view. See Reply 7–8, May 9, 2013, ECF No. 19). ¶ The Court also rejects the argument that Plaintiff has not provided evidence to show an automated dialing system was used. The abbreviations within and format of the text message strongly imply mechanical generation from some kind of database. If Plaintiff had simply attested that the text message was sent by an automated system, without more, Defendants might be entitled to summary judgment on the issue, but Plaintiff’s attestation as to the content of the text message itself provides enough circumstantial evidence to support an inference of the use of an automated system in this case. Although the number was clearly not “random” under the statute, because it identified Plaintiff by name, it was potentially (and likely) “sequentially generated” under the statute, i.e., dialed from a list of numbers in a database. ¶ The Court accepts Defendants’ argument that Plaintiff’s assertion of an expiration of her consent, whatever the scope of that consent was, cannot be read into the statute. However, this argument does not aid Defendants here, because the scope of consent is at issue. ¶ The Court also accepts Defendants’ argument that the opt-out requirement was not in effect at the time Plaintiff alleges she received the text message. See 77 Fed.Reg. 63240 (Oct. 16, 2012). Plaintiff therefore cannot prevail on this theory.