The Federal Communication Commission (FCC) has issued a ruling that clarifies the application of the Telecommunications Consumer Protection Act (TCPA) to schools to allow automated calls and texts to parents in the case of school closures and unexcused absences, as well as in non-emergency situations if a parent has provided contact information to the district.
Congress enacted the TCPA to prevent calling practices that negatively affect consumer privacy and threaten public safety. The TCPA prohibits certain types of robo-calls to residential phones without prior written consent and prohibits making any non-emergency calls or sending text messages to cell phones without prior written consent. The TCPA expressly exempts from these prohibitions calls made for “emergency purposes.”
Although the TCPA has been law since 1991, recent guidance from the FCC, which enforces the TCPA, and recent lawsuits against school messaging vendors has led school districts to become increasingly concerned about legal exposure, including hefty fines, for routine automated calls sent out to parents about school-related activities and school closures. Indeed, it was uncertain whether school districts could send out messages related to snow closings without running afoul of the TCPA.
On August 4, 2016, the FCC, in a long awaited declaratory ruling, confirmed that schools may make autodialed calls and send automated texts to cellphones of parents for emergencies without prior consent. Crucially, in the ruling, which came in response to a petition by the education messaging vendor Blackboard Inc., the FCC expressly stated that weather closures and unexcused absences are included in the definition of “emergency purposes” because these issues “potentially affect the health and safety of students, faculty, and other school staff members.” Third-party vendors sending out messages on behalf of school districts are also exempt as long as the messages are limited to the emergency and do not include any marketing.
While declining to extend “emergency” status to all calls sent out by school districts, the FCC allowed for non-emergency calls that “are closely related to the school’s mission” as long as they are sent to a number that a parent has previously provided to the district. “In other words, a parent/guardian or student who provides their wireless number to a school as a contact has given permission to be called at that number for such purposes.” The ruling included notifications about parent-teacher conferences and surveys seeking input on school issues in the definition of calls that are “related to a school’s mission.”
This ruling provides much needed clarity and reassurance to school districts that have made it a standard practice to send such notifications to parents, who often provide cell phones as primary contact numbers. Consistent with the guidance from the FCC, school districts should regularly update call lists to reduce the number of calls sent mistakenly to people not within the school community. Also, school districts should inform parents in advance of the full range of calls and messages that they should expect to receive and notify them that the school will honor a request to revoke consent and opt out of these calls and messages at any time.