On August 4, 2016, the Federal Communications Commission (FCC) issued a declaratory ruling confirming two exceptions to the robocalling rules contained in the Telephone Consumer Protection Act (TCPA). The FCC ruled that school callers may lawfully make robocalls and send automated texts to wireless phones assigned to students’ families pursuant to an “emergency purpose” exception without violating the TCPA. The FCC similarly allowed utility companies to make robocalls and send automated texts to their customers concerning matters closely related to utility service, such as a service outage or warning about potential service interruptions due to severe weather conditions, because their customers provided consent to receive these calls and texts when they gave their phone numbers to the utility company.
The rulings came in the FCC’s answer to petitions filed by Blackboard, Inc., Edison Electric Institute and the American Gas Association. The FCC cautioned, however, that as a general matter, the number being called or texted must have been obtained from the number's subscriber and not, for example, the consumer the robocaller “intended” to call if those parties are different.
In the past, the FCC has also made exceptions for debt collectors if the debtor provided his or her wireless number to a creditor as part of a credit application and for healthcare providers if the calls or texts fall within the scope of the dealings between the healthcare provider and the called party (and so long as do-not-call instructions have not been given). In July, the FCC broadly exempted the federal government and its contractors from the TCPA.
With respect to schools, the FCC stated, “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, and unexcused absences. We grant school callers additional relief for calls and messages that, while not emergencies, nevertheless are closely related to the school's mission, such as notification of an upcoming teacher conference or general school activity, by clarifying our understanding that such calls are (absent evidence to the contrary) made with the prior express consent of the called party when a telephone number has been provided to an educational institution by that called party… autodialed or prerecorded calls made for purposes that do not affect health and safety concerns fail to qualify as calls made for an emergency purpose. Instead, we agree with NCLC that the mere fact that an informational message comes from a school caller does not make it an emergency.”
As for utility companies, the FCC said, “this relief is not, as some commenters feared, a blanket exemption from the TCPA for utility companies.”
TAKEAWAY: The FCC continues to issue relief from the harsh penalties ($500 per call) of the TCPA for certain messages that it deems acceptable. While there are common-sense reasons for excepting schools and utilities, it remains to be seen whether the First Amendment’s freedom of speech guarantee permits the government to decide which
kinds of messages are permissible on the basis of their content.
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