Consent to Call Defeats TCPA Suit

Robo-Calls Are Not Always Wrongful

I, like everyone else, hate receiving unsolicited robo-calls. They are especially annoying during the political season or from surveyors who want my opinion on products I would never use. The Congress enacted Telephone Consumer Protection Act (“TCPA”) to protect all of us from annoying calls. I use caller ID and call blocking to avoid the calls because litigation is annoying.

In Smith v. Blue Shield of California Life & Health Insurance Company, United States District Court, C.D. California, 2017 WL 167451 (01/13/17) Plaintiff Shannon Smith sued Defendant California Physicians’ Service, d/b/a Blue Shield of California (“Blue Shield”) alleging violations of the TCPA. Plaintiffs claim is brought on behalf of herself and all others who received an automated, pre-recorded telephone call on December 3, 2015, from Blue Shield regarding renewal of health insurance for 2016.

BACKGROUND

Plaintiff completed an application for health coverage for her family through Covered California for insurance provided by Blue Shield. As part of the application, Plaintiff provided her telephone number as the best number at which to contact her. The coverage agreement was effective as of April 1, 2014, and remained in effect until December 31, 2015. Coverage was set to renew automatically, though with modifications, for the 2016 year.

The Affordable Care Act and its regulations mandate that an individual’s insurance coverage automatically renews to ensure continuity of coverage. However, insurance providers such as Blue Shield are authorized to modify insurance plans each year in various ways, including increasing premiums or copayment amounts, modifying coverage for particular services, and delineating which medical providers were within the insurance network. To ensure that individuals are aware of changes to their insurance, providers such as Blue Shield are required to provide written notice of renewal “before the date of the first day of the next annual open enrollment period” in which the individual can opt to select different coverage and/or a different insurance provider

Blue Shield, in compliance with applicable statutes and regulations, mailed Plaintiff a packet of information regarding changes to her insurance in late 2015. Included in the packet was information of alternative insurance plans offered by Blue Shield. In response to the numerous packets that were returned as undelivered in previous years, Blue Shield decided to call each of its existing members using a pre-recorded message to alert them to the fact that their packets had been mailed.

The text of the pre-recorded message went through several iterations and was drafted by Blue Shield’s marketing communications department, which “houses the professional writers that are responsible for crafting all communications” with existing and prospective customers.

Blue Shield called Plaintiff at the number she provided on the Covered California application, which was her cellular telephone number, on December 3, 2015. Three days later, the call had its intended effect when Plaintiff completed an application with Blue Shield for a different health insurance plan for the 2016 year.

DISCUSSION

The TCPA prohibits initiating any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party.

Consent

The TCPA prohibits pre-recorded phone calls made without prior express consent of the called party. Accordingly, consent is a defense to a TCPA claim.

In relationships between consumers and businesses, providing one’s phone number has generally been deemed to constitute implied consent to communications that are closely related to the purpose for which the number was provided.

The District Court concluded that defendant is correct that TCPA does not require that a call be made for the exact purpose for which the number was provided, but it undoubtedly requires that the call bear some relation to the product or service for which the number was provided.

In this case, Blue Shield argues, and Plaintiff does not contest, that she provided express consent by providing her cellular telephone number as the best number to reach her on her Covered California application. However, Plaintiff argues that the call constituted telemarketing and accordingly express written consent was required. The parties do not dispute that providing her number as the best way to reach her does not constitute express written consent — there was no clear authorization of telemarketing, there was no disclosure informing her that she was providing such consent (let alone a clear and conspicuous disclosure), and the call’s text did not include or reference an opt-out mechanism. Therefore, this case turns on whether the call constituted telemarketing.

The Ninth Circuit has stated that courts should evaluate the content of purported telemarketing with a measure of common sense. Blue Shield argues that because the call was purely informational it was not an advertisement or telemarketing call. Plaintiff disagrees, based on the fact that the calls were (1) discussed as part of a retention strategy, (2) written by the marketing team, and (3) initially drafted to link to Blue Shield’s renewal page and included “We want to keep you covered.”

Simply stated, the text of Blue Shield’s telephone call is informational. It notified recipients that they should have received information about changes to their insurance plan, encouraged them to seek out information about their plan by examining the information packet and visiting Blue Shield’s website, and directed them to call the member service number (as opposed to the sales department) to resolve any questions or issues. This content is virtually identical to the CMS template letters insurers such as Blue Shield send to customers regarding renewal. Both messages emphasize the importance of their contents, highlight that customers’ insurance plans and benefits had changed, inform recipients that there are alternative plans available, provide the insurer’s contact information, and convey the time-sensitivity of the information and the opportunity to renew or modify one’s insurance coverage.

The informative, non-telemarketing nature of the call is consistent with those in other decisions delineating the informative nature of messages. The content of the call also contrasts starkly with messages that courts have deemed to be telemarketing or advertising. Furthermore, deeming the content of the call to be informative rather than constituting advertising or telemarketing is consistent with the Health Insurance Portability and Accountability Act (“HIPPA”). Plaintiff’s only argument based on the actual text of the call is that urging recipients to visit Blue Shield’s website transformed the call into telemarketing. Blue Shield’s internal discussions regarding inclusion of the website in the call’s script demonstrate that the goal was to direct customers to Blue Shield’s member renewal tool, which allowed consumers to compare their current plan with various Blue Shield alternatives.

Plaintiff argues that various contextual facts make the call telemarketing or advertising. First, she argues that even if the text is facially informative, Blue Shield’s overarching incentive to retain customers and receive premium payments creates a clear implication of encouraging purchase of a good, product, or service.

The fact that Blue Shield initially conceptualized the call as a component of its overall customer retention efforts is insignificant. The call was devoid of marketing content and Blue Shield’s discussions around the call centered on ameliorating its members’ failure to open the mandated mailing and their subsequent displeasure at insurance coverage changes. If the Court accepted Plaintiff’s argument, nearly all innocuous, customer-friendly and informative gestures would be needlessly transformed into telemarketing and advertising.

Evaluating Blue Shield’s call with a measure of common sense, the Court found that it must conclude that the call is not telemarketing or advertisement within the meaning of the statute. It makes no sense to the Court that a single call tracking Blue Shield’s mandatory communications regarding insurance enrollment and renewal would expose Blue Shield to millions of dollars of liability under the TCPA.

ZALMA OPINION

The TCPA is evidence that no good deed goes unpunished and that the good intentions of Congress when it enacted the TCPA resulted in unintended consequences: lawsuits clogging the courts for innocent attempts to keep people insured in compliance with the details of Obamacare. Fortunately the trial court used common sense and threw out the case.

ZALMA-INS-CONSULT                      © 2017 – Barry Zalma

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant and expert witness specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 49 years in the insurance business.

Mr. Zalma is the first recipient of theLEGEND-TROPHY-2 first annual Claims Magazine/ACE Legend Award.

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About Barry Zalma

An insurance coverage and claims handling author, consultant and expert witness with more than 48 years of practical and court room experience.
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