By: Douglas Bonner, Rebecca Jacobs, and Marty Stern
The FCC recently released a Declaratory Ruling with new clarifications for schools and utilities on autodialed calls and texts and pre-recorded/artificial voice calling under the Telephone Consumer Protection Act (“TCPA”) for informational messages. The ruling confirms that it is not a violation of the TCPA for: (1) schools to send automated texts and pre-recorded voice calls to student family wireless phones pursuant to the FCC’s “emergency purpose” exception or with prior express consent, typically by a student, parent or guardian providing the wireless number as a phone contact; and (2) for utilities to send automated texts and pre-recorded calls to wireless numbers provided by customers concerning matters “closely related to the utility service,” such as service outages, warnings about potential outages due to weather, or the potential disconnection of service for non-payment, because customers consent to being contacted regarding those issues when they provide their phone number to the utility.
The Commission confirmed that schools may place autodialed calls and automated texts to student family wireless phones without consent for what it terms “emergencies,” including weather closures, fire, health risks, threats, and unexcused absences. In addition, the Commission clarified that parents/guardians or students who provide their wireless number to a school as a contact have provided their prior express written consent to receive calls that are “closely related to the educational mission of the school or to official school activities,” unless they have indicated otherwise. Such activities would include teacher conferences or school events. The Commission noted that non-school events, such as local community events, would likely fall outside the scope of prior express consent when a parent/guardian or student provided their wireless number without a disclosure from the school that non-school related calls/messages would be placed to that number.
With regard to utilities, the Commission clarified that customers who provide a utility with their wireless number when they initially register for service or later update their contact information, have provided their prior express consent to be contacted by the utility at that number with messages that are “closely related” to the utility service, unless the customer has indicated otherwise. Included in a list of calls found by the Commission to be “closely related” to the utility service include: warnings about service outages; updates on service outages or service restoration; requests for confirmation of service restoration or information about lack of service; notification of meter work; tree trimming, or other field work affecting the utility service; notification to customers that they may be eligible for subsidized or low-cost services due to certain qualifiers such as age, low income or disability; calls to provide information about potential brown-outs due to heavy energy use; and warnings about payment or other problems that threaten termination of service. Debt collection calls, including post service termination, are specifically excluded from the ruling, though the Commission made clear that nothing in the order disturbs existing jurisprudence that generally permits autodialed debt collection calls to be made to a wireless number with the prior express consent of the called party, typically obtained when a customer provides a wireless number in connection with the initiation of service. The ruling also made clear that it does not cover calls related to energy savings programs.
Under the ruling, schools and utilities still must ensure that they have measures in place to honor customer revocations of consent to be called. In addition, nothing in the declaratory ruling changed a 2015 Commission decision finding a violation of the TCPA for calls to a reassigned wireless number after the first call to that number after it had been reassigned.