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Dental practice sued for allegedly sending unsolicited text messages

ADA Center for Professional Success helps dentists follow rules when phoning or texting patients

January 29, 2020

By David Burger

Fort Lauderdale, Fla. — A class action lawsuit alleging that a Florida dental practice sent unsolicited text messages in violation of the Telephone Consumer Protection Act was filed in the U.S. District Court for the Southern District of Florida Jan. 6.

The lawsuit alleges that the practice, TLC Dental-Hollywood, sent texts to plaintiff Adriana Hill and others using an automatic dialing system without the practice receiving prior consent. If substantiated, the action could be found in violation of the Telephone Consumer Protection Act, which prohibits sending certain kinds of messages without consent.

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Congress enacted in 1991 the Telephone Consumer Protection Act, which restricts the making of telemarketing calls and the use of automatic telephone dialing systems and artificial or prerecorded voice messages. In 1992, the Federal Communications Commission adopted rules to implement the act, including the requirement that entities making telephone solicitations institute procedures for maintaining company-specific do-not-call lists. In 2003, the FCC revised its rules to establish, in coordination with the Federal Trade Commission, a national Do-Not-Call registry. In 2012, FCC revised its TCPA rules to require, among other things, prior express written consent from consumers before sending certain kinds of messages. The FCC has affirmed that the TCPA applies to both voice and text calls to wireless numbers.

The complaint says that the dental practice “caused thousands of unsolicited text messages to be sent to the cellular telephones of [the] plaintiff and class members, causing them injuries, including invasion of their privacy, aggravation, annoyance, intrusion on seclusion, trespass and conversion.”

Around March 2019, the practice allegedly began sending marketing text messages to the plaintiff’s cell phone, with messages indicating the practice was open and that the plaintiff should “take advantage as there are only a few openings left,” according to the complaint, and that at no point in time did the plaintiff consent to the text message practices.

The defendant’s text messages to the plaintiff caused the depletion of the plaintiff’s cell phone battery, the suit alleged, posing “a real risk of ultimately rendering the phone unusable for text messaging purposes as a result of the phone’s memory being taken up.”

Ms. Hill is just one of many who has received unsolicited texts by the practice, the complaint alleges. “Upon information and belief, [the] defendant has placed automated calls to cellular telephone numbers belonging to thousands of consumers throughout the United States without their prior express written consent.”

The exact number and identities of other plaintiffs is unknown at this time, the complaint stated, and can only be determined though examination of the practice’s call records.

The suit is asking for injunctive relief to stop the practice's actions, along with statutory damages of up to $1,500 per text.

Messages sent by ADA News to the plaintiff’s attorneys and the dental practice were not returned.

The online ADA Center for Professional Success houses information on suggestions to member dentists that may want to phone or text patients called “Follow the Rules When Phoning Patients.” The webpage, which includes a link to a sample consent form, is available here.

That webpage says in part, “The laws are complex, perhaps overbroad, and their penalties are severe, making compliance a challenge. The ADA attempts to monitor these laws on the federal level, and intends to continue to keep members apprised of changes. Careful attention to compliance can help give patients more control over their wireless and landline phones, enhance the dentist-patient relationship and help protect dental practices from potential liability.”