The Federal Communications Commission (“FCC”) recently issued a declaratory ruling confirming “that school callers may lawfully make robocalls and send automated texts to student family wireless phones pursuant to an ‘emergency purpose’ exception or with prior express consent without violating the Telephone Consumer Protection Act (“TCPA”).” This ruling was in response to a petition filed by Blackboard, Inc. regarding the treatment of certain types of non-telemarketing, informational “robocalls” under the TCPA.
In 1991, Congress passed the TCPA to address certain calling practices that invade privacy and threaten public safety. The TCPA prohibits making telemarketing calls using an artificial and prerecorded voice to residential telephones without prior consent and making any non-emergency call using an automatic telephone dialing system without prior consent.
Blackboard, Inc. provides an interactive web portal available to its educational customers that allows each school to draft informational messages and distribute them to its student families via the use of automated calls. The FCC issued its declaratory ruling in response to Blackboard’s petition to distinguish automated calls sent by schools using its system from the prohibitions on telemarketing calls.
The FCC’s ruling addressed both emergency and non-emergency calls. It ruled that school callers may lawfully make autodialed calls and send automated texts to student family wireless phones without consent for emergencies, including weather closures, fire, health risks, threats and unexcused absences. It confirmed that such calls were made necessary by situations affecting the health and safety of students and faculty. The FCC stated that although prior express consent is not required for emergency calls, it encouraged schools to regularly update their emergency calling lists to ensure that emergency-type calls reach the parent or guardian of the affected student and are not received by individuals with no connection to the school.
The FCC declined to extend the TCPA emergency-purpose exception to all robocalls made by school callers. Non-emergency calls, however, are permissible under the TCPA. Although the scope of consent given by a parent/guardian can vary, the FCC ruled that “when a parent/guardian or student provides only their wireless number as a contact to a school, the scope of consent includes communications from the school closely related to the educational mission of the school or to official school activities absent instructions to the contrary from the party who provides the phone number.” In the view of the FCC, a parent or student who provides their wireless number to a school as a contact has “given permission to be called at that number for [school] purposes.”
As for calls about non-school or community events, “if such calls lacked any educational purpose or connection to official school activities, it would likely fall outside the scope of consent when the parent or student has only provided a number to the school without disclosure that they may receive such calls.” Accordingly, the FCC ruling encourages schools to “disclose the full range of all potential calls and messages that a parent/guardian or student should expect to receive when requesting consent from parents/guardians and students.” Finally, school officials must be aware that parents and students have the right to revoke prior consent and should be prepared to honor revocations for parent/guardians and students who no longer wish to receive non-emergency calls and texts from the school.