FCC recently provided additional guidance about when text messages and automated calls initiated by colleges and universities are exempt from liability under the federal Telephone Consumer Protection Act (TCPA). Below is a brief background of relevant portions of the TCPA, a summary of new guidance from the Federal Communications Commission (FCC), and a few open issues to consider.
The TCPA was passed in 1991 to curb the rampant and harassing telemarketing practices of the time, and established relatively high-dollar civil liability – $500 to $1500 per violation – as its enforcement mechanism. In relevant part, the TCPA makes it unlawful to use “an automatic telephone dialing system” to call (or text) any number assigned to a cellular telephone service, and allows the call/text recipient to sue the caller. There are two key statutory exceptions to liability under this section of the TCPA:
- where the recipient of the call provided his or her prior express consent to be called, or
- where the call was placed for an “emergency purpose,” defined as “any situation affecting the health and safety of consumers,”
The Blackboard Petition
Blackboard, Inc. provides, among other services, a platform for schools to send mass text messages to students. According to Blackboard, the purposes for such messages include “emergency weather closures, threat situations, event scheduling, or to provide other important education-related information.” Blackboard asked the FCC to rule that the messages that it and its educational organization clients send are exempt from liability under both of the above-listed exceptions to TCPA liability.
The FCC responded with important TCPA clarifications for education communities. (Note that the FCC ruling uses the terms “school” and “educational organization” interchangeably and without definition; in light of common usage outside of the education community and the identity of commenters to Blackboard’s petition, which include higher education organizations, the FCC’s ruling appears to extend to higher education as well as to K-12 settings.)
FCC ruling on emergency purpose. Blackboard’s petition requested a broad ruling on the meaning of “emergency purpose” as applied to educational institutions – that “all automated informational messages sent by an educational organization via a recipient’s requested method of notification are calls made for an ‘emergency purpose’ and thus outside the requirements of the [TCPA].”
The FCC met Blackboard halfway, ruling that emergency purpose exception covers such calls or texts sent by or on behalf of schools if the message concerns “the health and safety of students and faculty.” The FCC listed several examples that should be considered emergencies, such as:
- weather closures,
- health risks,
- threats, and
- alerting parents to unexcused absences.
But the FCC did not rule, as Blackboard requested, that all informational messages sent by an institution are considered emergencies, remarking that “the mere fact that an informational message comes from a school caller does not make it an emergency.” For other types of informational messages, the institution must have prior express consent from the recipient, as addressed below.
FCC ruling on prior express consent. Blackboard also asked the FCC to declare that informational messages sent to a wireless telephone number constitute calls made with “prior express consent” when “the wireless telephone number has been provided to the caller as a means of providing information” to the recipient, “even if the wireless telephone number later is in use by another consumer.” Again, the FCC met Blackboard halfway.
The FCC essentially determined that if a student or parent provides his cell phone number as his/her only point of contact, he/she has provided consent to be contacted with institution-related messages.
What types of messages are considered “closely related to the educational mission” or official institutional activities? While there is no definitive list, the FCC did provide the following examples as guidance:
- calls relating to parent-teacher conferences,
- surveys that provide input on institution-related issues, and
- notifications about general institutional activities.
Schools must be prepared, however, to honor revocation requests from students or parents who no longer wish to receive such non-emergency calls and texts.
- Exactly what types of calls are not “closely related to … educational mission”? Although the FCC provided some examples of permissible and potentially impermissible calls, there will almost certainly be questions about whether other types of calls should fall within the scope of consent given when a student/parent provides a cell phone number as the point of contact. In an attempt to limit confusion, the FCC therefore encouraged institutions “to disclose the full range of all potential calls and messages that a student/parent should expect to receive when requesting consent.”
- Which entities can be held liable? The FCC specifically reserved the question of whether “Blackboard or its client schools are the party that ‘make’ or ‘initiate’ the automated calls under the TCPA,” leaving for another day whether an institution utilizing a third-party texting service such as Blackboard could be held liable for sending, for example, non-emergency text messages to a person who has not given consent or to a re-assigned phone number accidently.
What this means for you
The FCC ruling clarifies the definition and scope of emergency messages and calls that colleges and universities can make to cellular phones without express consent under the TCPA Given remaining ambiguities, the safest approach is nevertheless to consider obtaining express written consent to contact students and parents via cellular numbers—such as through contact information forms including check boxes confirming that individuals agree to contact via cellular phone, and clearly defining the scope of messages that will be sent.
For more information on the TCPA as it applies to colleges and universities, see generally Don’t get blindsided by the Telephone Consumer Protection Act.