PHILADELPHIA – Rite Aid has filed a motion to dismiss the complaint of a woman who claims the drug store violated her rights under the Telephone Consumer Protection Act (TCPA) by calling her cellphone repeatedly without her consent.

Rite Aid maintains in its Sept. 8 motion that notifying customers that their prescriptions are ready is exempted by the TCPA because the calls made for “emergency purposes.”

Dionna Harrell v. Rite Aid Corp. was filed in the U.S. District Court for the Eastern District of Pennsylvania on June 26. Harrell claims in her complaint that beginning in September 2016, she began getting calls on her cellphone from a recording, under the aegis of Rite Aid, notifying her of a prescription being ready, but the prescriptions were not for her.

Harrell alleges she contacted Rite Aid three times but it would not stop calling her. She seeks damages of $500 to $1,500 for each mistaken prescription notification. 

However, Rite Aid claims in its motion to dismiss that the calls to Harrell are exempt.

“Plaintiff’s claim fails because the calls are covered by the emergency purpose exemption and therefore do not violate the TCPA. ... The Federal Communications Commission ('FCC'), charged with regulating the TCPA, has made clear that this exemption is broad. Pursuant to the emergency purpose exception, calls 'made necessary in any situation affecting the health and safety of consumers' are completely exempt from the TCPA," the motion states.

Rite Aid maintains that public policy favors Rite Aid in this instance because of the importance of patients receiving their prescriptions.

"If patients do not receive timely notice regarding their prescriptions, this could, in some instances, cause injury or even death," the company says.

"On the other hand, mistakenly called individuals face, at most, the annoyance of a few unwelcome calls. Pharmacies like Rite Aid have no interest in making such calls to anyone other than their patients.” 

Rite Aid argues there is a  “compelling health interest in receiving updates from their pharmacy on the status of their prescription medication. This is especially important for patients who suffer from severe or chronic medical conditions and those who require life-saving prescription medications. Moreover, for patients who suffer from communicable illnesses, such notifications are important to the health and safety of not only the patient, but the community at large," the motion states.

Brian P. Downey of the firm of Pepper Hamilton in Harrisburg represents Rite Aid. Harrell is represented by Sergei Lemberg of Lemberg Law in Wilton, Connecticut.

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U.S. District Court for the Eastern District of Pennsylvania U.S. Federal Communications Commission

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