In recent years, the Telephone Consumer Protection Act (“TCPA”) has spurred an epidemic of litigation, including class action lawsuits against several unsuspecting colleges and universities. Schools should understand the basic contours of TCPA requirements to avoid unwittingly joining the casualties.
Congress passed the TCPA in 1991 to curb harassing and unwanted communications from telemarketers, and to give consumers a way to stop them. The TCPA granted consumers the right to bring private lawsuits for certain violations, and to recover $500 per violation (or up to $1,500 per violation for particularly egregious violations). The TCPA was later amended to provide the same relief to recipients of some “unsolicited advertisements.”
The way in which we communicate with one another has changed drastically since 1991, but the TCPA, unfortunately, has not. Many of today’s TCPA lawsuits attack modern, legitimate methods of communicating with students. Most of these lawsuits are often filed by serial (professional) plaintiffs who seek out technical violations of the statute in the hopes of securing class action status and a large settlement under the threat of catastrophic liability.
On this legal landscape, schools must be aware of the TCPA, its restrictions, and how this decades-old statute applies to today’s constantly evolving technology. Though the application of the TCPA in various jurisdictions and to various technologies and operations varies, the following summary provides a list of some of the key points that institutions should consider when evaluating TCPA compliance.
- Autodialers. The TCPA prohibits using an automatic telephone dialing system (“Autodialer”) to initiate calls or texts to cell phones without consent. An Autodialer is specifically defined as equipment that has the capacity (A) to store or produce numbers to be called, using a random or sequential number generator and (B) to dial such numbers. The exact nature of what equipment constitutes an Autodialer has been the subject of much litigation. The FCC recently held that even equipment that could potentially be used in such a way qualifies as an Autodialer.
- Consent issues. The TCPA and related state laws require consumer consent to various aspects of communications.
Autodialing. Specifically, the TCPA requires a caller to have the ““prior express consent” of the called party in advance of using an Autodialer to call a cell phone (except in emergencies).
Pre-recorded voice. Similarly, the TCPA requires prior express consent of the called party in advance of initiating a call to a cell phone or residential telephone line using a pre-recorded or artificial voice (except in emergencies).
Telemarketing. If a call placed using an autodialer or pre-recorded voice constitutes “telemarketing” under applicable FCC regulations, the prior express consent must be in writing and contain specific disclosures enumerated in FCC regulations.
SMS/text messages. For TCPA purposes, the term “call” also includes SMS text messages. For that reason, schools considering text message communications or campaigns should determine whether they have obtained the proper consent, and the equipment used to transmit those text messages.
Recording. Several states require that both parties consent to the recording of calls, and some make violation of this requirement a criminal or strict liability offense.
Consent. Though effective written consent can come in many forms (e-signature, email, telephone key press, voice recording), the law in this area is unsettled. Ideally, institutions will obtain express written and signed consent from potential contacts for calls and texts (using Autodialers and/or pre-recorded messages) that are placed (by the institutions or by third-party vendors) to any phone number provided by those contacts. In many cases, nonprofit institutions are exempt from (or have lower) TCPA consent requirements, though application of these exemptions is nuanced.
Reassigned numbers. The FCC recently announced that consent follows the individual, not the phone number. This can be problematic in situations where a caller obtains proper consent from an individual to call a particular phone number, but unbeknownst to the caller that individual subsequently relinquishes ownership of that phone number and the number is then “re-assigned” through the telephone carrier to another individual. Even though a caller believes it had consent, it may face TCPA liability if it calls the number after reassignment.
- Call times and holiday restrictions. Colleges and universities must honor state law provisions on acceptable calling times and restrictions on holiday calling—both for the state from which the calls originate and perhaps for the state to which the calls are going. While the Federal Communications Commission has proposed a rule that would allow callers to rely upon area codes in determining when calls are placed during appropriate hours, it has yet to be adopted.
- Other issues.
- Calls that qualify as “telemarketing” under the TCPA (essentially, calls that encourage purchase or rental of property, goods or services) that use pre-recorded voice messages or advertisements must provide an opt-out option.
- Callers must not disconnect unanswered calls within 15 seconds or before four rings.
- Callers must not send unsolicited faxes to fax machines without complying with a number of requirements, and must not send solicited faxes without opt-out language.
- Callers must not use misleading caller ID identification.
- Institutions also must consider guidelines concerning “Do Not Call” lists (national, state, and international); while nonprofits are not covered by national Do Not Call requirements, some states have more expansive provisions that may apply.
- Though non-profits are exempt, other telemarketers must comply with limitations on the number of “abandoned” dropped calls during calling campaigns.
- Vendors. If you are using a vendor to transmit calls, texts, or faxes to students or potential students, consider:
- Requiring vendors to obtain proper consent, or at the very least make clear who has such responsibility.
- Requiring the vendor to indemnify you for any TCPA violations.
- Requiring the vendor to obtain liability insurance and to name you as an additional insured.