Robo-calls connecting citizens directly to a hospital's CEO telephone line do not violate the Telephone Consumer Protection Act of 1991 (TCPA), the Sixth Circuit Court of Appeals held in Ashland Hospital Corporation v. Service Employees International Union. This decision adds another arrow in labor's quiver and may embolden labor unions in their efforts to place pressure directly on hospital management during labor disputes.
The case arose out of a labor dispute between the Service Employees International Union (SEIU) and King's Daughters Medical Center regarding the hospital's proposal to shift some of the costs of employee health care onto employees. To protest the proposal, the SEIU launched a robo-call campaign in which people living within the hospital's service area received calls from an automated system that played a prerecorded message criticizing the proposal and targeting the hospital's CEO. The message stated:
Imagine you're at the hospital alone in pain waiting to be seen; waiting and waiting. What could possibly be taking so long? King's Daughters Medical Center CEO Fred Jackson laid off over 100 hospital employees, paid hospital executives bonuses worth over one million dollars, and took over 1.1 million in salary and other perks for himself. Now Jackson plans to cut health care for hospital employees. That's just not right.
The message concluded by asking the recipient to press "1" to be connected directly to the hospital's CEO to "tell him to stop putting our families' health care at risk."
As a result of the campaign, the CEO received 536 live telephone calls from area residents in two days. The hospital filed suit to stop the calls, alleging that the robo-calls violated the TCPA, a federal law designed "to curb abusive telemarking practices that threaten the privacy of consumers and businesses." In addition to general prohibitions, the TCPA provides specific protections for hospitals, making it unlawful "to make any call . . . using any automatic telephone dialing system or an artificial or prerecorded voice . . . to any emergency telephone line . . . [or] to the telephone line of any guest room or patient room of a hospital, health care facility, elderly home, or similar establishment . . . ." It also prohibits the use of such systems to engage two or more phone lines simultaneously. In its lawsuit, the hospital alleged that the robo-calls violated the TCPA by interfering with the hospital's emergency lines, simultaneously engaging multiple hospital lines, initiating calls to residential lines using a prerecorded message without prior express consent, and failing to follow the identification and disclosure requirements of the TCPA. The high volume of calls, the hospital claimed, overwhelmed its main trunk lines, which support emergency services, calls to patient rooms, and all other extensions in the hospital phone system.
The SEIU moved to dismiss the complaint and the federal district court granted the motion. The Sixth Circuit affirmed, holding that the calls to the hospital did not violate the TCPA because they were not made using an automated system. Rather, the court found there were two calls at issue in each contact: The first call, to which the TCPA would apply, was between the SEIU's automated system and an area resident; the second call was a live call from an area resident to the hospital's CEO, and therefore not covered by the TCPA. In reaching its holding, the court rejected the hospital's argument that it was the SEIU's use of automated calls to residents that caused the disruptive deluge of live calls to be made, finding "it would give rise to far-reaching and unforeseen liability" to consider "making" an automated call the same as using an automated system to "cause" a live call to be made. Finally, the court held that, as a tax-exempt labor organization making the automated calls for a non-commercial purpose, SEIU was exempt from the consent requirements of the TCPA, and that the statute did not provide a private right of action for violation of its identification and disclosure requirements.
Ashland Hospital Corporation could raise the stakes in hospital labor negotiations and disputes, potentially encouraging unions to use robo-calls to engage the public and enable individuals to immediately connect to hospital management directly via telephone to voice support for the union's position. Hospitals and other healthcare entities should be aware of this potential and be prepared if it occurs.
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