FCC Clarifies TCPA Applicability for Certain Calls from Utilities, Schools

By Joseph C. Wylie II, Molly K. McGinley, Nicole C. Mueller

On August 4, 2016, the Federal Communications Commission (the Commission) released a Declaratory Ruling clarifying the meaning of the “emergency purpose” exception to the Telephone Consumer Protection Act’s (TCPA) prohibition on certain autodialed or prerecorded-voice calls.  The Commission also found that the voluntary provision of cellphone numbers to schools or utilities constituted prior express consent to calls “closely related to” the educational and utility services offered by the callers.

Petitioners Blackboard, Inc. (“Blackboard”), Edison Electric Institute, and American Gas Association (collectively referred to as “EEI/AGA”) each filed requests for a declaratory ruling seeking clarification regarding the TCPA’s prohibition on making any nonemergency call using an automatic telephone dialing system (an “autodialer”) or an artificial or prerecorded voice.  EEI/AGA sought a declaratory ruling requesting that the Commission confirm that certain calls fall within the “emergency purpose” exception to the TCPA’s prohibitions.  In the alternative, EEI/AGA asked for confirmation that providing a wireless telephone number to an energy utility constitutes “prior express consent” to receive nontelemarketing, informational calls related to a user’s utility service, which are placed using an autodialer or an artificial or prerecorded voice.  The types of communication as to which EEI/AGA sought clarification included calls to (1) providing notification about planned or unplanned service outages; (2) providing updates about outages or service restoration; (3) asking for confirmation of service restoration or information about the lack of service; (4) providing notification of meter work, tree-trimming, or other field work; (5) verifying eligibility for special rates or services, such as medical, disability, or low-income rates, programs, and services; (6) warning about payment or other problems that threaten service curtailment; and (7) providing reminders about time-of-use pricing and other demand-response events.

The Commission did not reach the question of whether the communications sent by utility companies fall within the TCPA’s “emergency-purpose” exception, but instead held that certain calls made by utility companies solely for the purpose of communicating with its customers about the utility services it provides and the maintenance thereof are not telephone solicitations and do not constitute telemarketing.  Calls “closely related to the utility service,” such as a service outage or warning about potential service interruption due to severe weather conditions are immune from liability under the TCPA because EEI/AGA’s customers are deemed to have provided consent to receive these calls and texts when they gave their phone numbers to the utility company.  The Commission characterized this holding as more narrow than the relief sought but did not specify which calls would not be considered to be “closely related” beyond the categories of calls addressed in EEI/AGA’s petitions.  The Commission did warn that after service has been terminated, routine debt collection calls by utilities “will continue to be governed by existing rules and requirements, and we leave undisturbed the existing legal regulatory framework for those calls.”  The Commission cautioned that utilities will bear the burden of establishing that express consent was given and “strongly encourage[d]” utilities to adopt certain practices to establish consent.  The Commission also reiterated that express consent can be revoked “in any reasonable manner that clearly expresses a desire not to receive further messages.”

Petitioner Blackboard, which operates an interactive Web portal available to its educational organization customers to draft and distribute informational messages, sought a ruling 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 types of messages Blackboard sought to obtain clarification for included (1) “attendance” messages, which alert parents to an unexcused absence; (2) “emergency” messages, which alert the school community to a variety of emergency situations (e.g., weather, fire, health risk, threat situations); (3) “outreach” messages, which provide education-related information to parents regarding school activities (e.g., teacher conferences, back-to-school night); and (4) “simple survey” messages, which allow recipients to RSVP to events or provide input on an important issue.

The Commission granted Blackboard’s requests in part.  The Commission confirmed that autodialed calls to wireless numbers made necessary by a situation affecting the “health and safety of students and faculty are made for an emergency purpose” and therefore will not incur liability under the TCPA.  These types of calls include messages relating to weather closures, incidents of threats or imminent danger to the schools, and unexcused student absences.

The Commission declined to extend the emergency-purpose exception to all calls made by school callers and held that the “mere fact that an informational message comes from a school caller does not make it an emergency.”  However, the Commission also determined that prior express consent would be considered to have been obtained for communications “closely related to the educational mission of the school” or “to official school activities absent instructions to the contrary from the party who provides the number” when a parent, guardian, or student provides only their wireless number as a contact to a school.  The Commission further clarified that all but one category of communications enumerated by Blackboard constituted communications “closely-related to the educational mission” — those relating to non-school events did not qualify, such as instances where a school uses the platform to call about ballot issues or marketing of any kind.

Commissioner Rosenworcel filed a statement approving and dissenting in part to the ruling.  Commissioner Rosenworcel underlined Congress’s mandate to the Commission to protect consumers from the “growing scourge of unwanted calls” and chastised the Commission for going a “step too far” by deducing that schools may make certain calls in emergency situations — that any third party can also make as a robocall or send as a text message to any person under the “auspices of an emergency.”  Such a ruling, says Commission Rosenworcel, creates a third-party carve-out that was not requested in any of the petitions at issue.

Commissioner O’Rielly also filed a separate statement supporting the relief provided and noting that the “fact that the Commission must continually grant exemptions or clarifications to its TCPA framework … highlights that its interpretations of the law are overly restrictive, unrealistic, and unworkable.”  He remains “hopeful” that the Commission’s general framework will be overturned in court and force the Commission to “chart a more rational course” in the future.

This ruling provides valuable guidance to utilities and schools as to what the Commission considers to be “solicitations,” and the manner in which consent may be obtained.

 

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