Is Rite Aid Immune from TCPA Liability?

Rite Aid HDQTRS. Corp. ("Rite Aid") has recently sought summary dismissal of a putative class action lawsuit pending in the Southern District Court of New York alleging violations of the Telephone Consumer Protection Act ("TCPA").   Rite Aid's exposure to TCPA liability stems from its use of prerecorded phone calls to certain pharmacy patients' cellphones placed to remind them to get flu shots for the upcoming flu season.

What are the arguments that Rite Aid has made in support of dismissal of the TCPA suit?

Rite Aid has argued that it cannot be held liable for the immunization reminder phone calls for the following reasons:

• The Federal Communications Commission's ("FCC") Healthcare Rule precludes liability because no prior express consent is required for such calls so long as the recipient has previously provided his/her cell phone number;
  • Rite Aid has argued that immunization reminders, such as the one at issue, are the precise healthcare messages to