iMany counties are beginning school over the next two weeks. Just in time for the new school year, the FCC has issued guidance that affects how schools may use automated calling systems and when consent is and is not required to make an automated call to a telephone number on file. As many counties have not likely considered this issue, this education alert gives some background on the law that applies to automated calls from school systems and what the new guidance means for those calls.
Briefly, the Telephone Consumer Protection Act (TCPA) governs automated calls made to – and text messages sent to – both landlines and wireless telephone numbers. The TCPA and the corresponding regulations issued by the FCC govern not only telemarketing calls by corporations, but also automated or prerecorded calls made by school systems, even though calls made by school systems are treated somewhat differently.
Generally speaking, the TCPA and the FCC rules prohibit: (1) making telemarketing calls using an artificial or prerecorded voice to residential telephones without prior express consent; and (2) making any non-emergency call using an automatic telephone dialing system or an artificial or prerecorded voice to a wireless telephone number without prior express consent. The TCPA expressly exempts from these prohibitions calls made for “emergency purposes.”
On August 4, 2016, the FCC released a Declaratory Ruling that addressed specifically a petition filed by Blackboard, Inc., a company that provides a web portal that allows school systems to draft informational messages to be sent out to its educational system customers’ lists. Blackboard sought to clarify what constitutes an “emergency” for school systems and therefore, what calls may be made without a prior written consent. Blackboard sought to have all school calls included within the “emergency” category because of its belief that the FCC should treat all school calls differently than commercial calls. The FCC declined to do so, but it did clarify what calls made by school systems constitute emergency calls (and do not require written consent) and what calls do not constitute emergency calls (and therefore, what consent is necessary).
The TCPA and the new Declaratory Ruling give us a few guiding principles that school systems should be aware of with regard to using automated calling systems. Without a doubt, it is always advisable to have a parental consent form that delineates what kind of calls the school system might make and permitting the parent to opt in or opt out of those calls (except emergencies) so there is no confusion about how your school system uses automated calls. That being said, some of those guiding principles are:
1. 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, unexcused absences, and other situations affecting the health or safety of students and faculty.
2. Non-emergency calls (those that do not relate to health or safety) related to the school system may only be made with prior consent. Those calls would include outreach calls or informational calls, for example, advising parents of parent-teacher conferences, programs, school events, activities. However, a parent/guardian or student who provides only their wireless number to a school as a contact is deemed to have given permission to be called at that number for such purposes.
3. Non-emergency calls not related to the school system (for example, calls informing of community events) are beyond the scope of consent even when a parent/guardian or student has only given a wireless number. As a result, if the school system makes such calls, it should ensure that its written consent form includes that such calls might be made.
4. School systems are bound – just as commercial entities are – to track the numbers used to reach the parent/guardian or student. A school system can be subject to liability under the TCPA for calling a number that has been reassigned after the parent/guardian or student has released the number. As a result, school systems must have measures in place to honor requests to revoke a parent’s/guardian’s or student’s consent for a particular number to be called. Those could include, as examples, an opt-out option during automated calls or an option for text recipients to respond to update contact information or an agreement with the parent/guardian or student that it will notify the school system of a change in number. Companies that provide automated calling services have other processes as well.
The Declaratory Ruling provides school systems some relief from the provisions of the TCPA and the FCC regulations. However, a school system that violates the TCPA or the regulations may be liable to the called person or for penalties. As a result, it is imperative that school systems ensure they understand the TCPA and the FCC regulations and can comply with them.
