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August 12, 2016
Via First Class Mail and Email
Andrea F. Bennett
California Educational Technology Professionals Association
980 9th Street, Floor 16,
Suite 21 Sacramento,
Re: Update on Legal Implications of FCC's 2016 Order on Automatic Dialing under TCPA
Dear Ms. Bennett:
Please be advised that the Federal Communications Commission ("FCC") recently issued Declaratory Ruling and Order FCC 16-881("Order") permitting school districts and other educational organizations in emergency circumstances to automatically dial phone numbers of parents and guardians of school district students without prior written consent. This Order is contrary to the FCC's previous position on this issue and the opinion letter we provided to you on September 22, 2015 concerning same.
I. Background and Summary of Recent FCC Order
In 1991, Congress enacted the Telephone Consumer Protection Act ("TCPA") to address telemarketing practices that invaded consumer privacy. Generally, the TCPA is intended to prohibit calls and text messages made with an automatic telephone dialing system ("autodialer") to any wireless telephone number, without prior express consent of the called party.
The recent 2016 FCC Order was issued in response to a petition by Blackboard, Inc., who requested a declaratory ruling pertaining to automated educational and informational
The Order is available on the FCC's website:
http://transition.fcc.gov/DaiIv Releases/Daily Business/2016/db0804/FCC-16-88Al.pdf
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Andrea F. Bennett
August 12, 2016
messages as sent by educational organizations. The following are key highlights from the order:
• Educational organizations may lawfully make autodialer calls to students' family and district employees' telephones and wireless phones for an emergency purpose without prior consent, as defined below in Section II.
• Educational organizations may also make autodialed calls that are not for emergency purposes but are closely related to the educational organization's mission, such as notification of an upcoming teacher conference or general school activity, provided that the telephone number had been given to the educational organization by the called party.
• Non-emergency, non-education-related autodialed calls still require express consent.
II. Emergency Purpose Emergency purpose
constitutes a communication that is necessary in a situation affecting the health and safety of students, faculty and staff at a school. Specifically, the FCC has included the following as examples of permissible communications: weather closures, incidents of threats or imminent danger due to fire, health risks, threats, and unexcused absences. Autodialed communications regarding unexcused absences have been justified as serving an emergency purpose because they "implicate the health and safety of an unaccounted-for child who either did not arrive at school as expected or did not stay at school."
III. Non-Emergency Purpose and Scope of Consent
The FCC also provided clarity on autodialer calls for non-emergency purposes in the educational setting under the TCPA. Informational communications that have no bearing on health or safety fall outside of the emergency exception, and are prohibited under the TCPA without prior express consent. However, the FCC recognized that school districts frequently obtain parent or student contact information (including phone numbers) as part of the enrollment process and found that the provision of such contact information may be deemed prior express consent to be contacted for school-related informational communications or communications "closely related" to the educational mission of the school. Calls that are closely related would include calls informing parents of teacher conferences, or surveys on school-related issues. However, noneducational, non-emergency calls made without express consent would still be prohibited under the TCPA. Consent to receive non-educational, non-emergency automated calls would require an affirmative statement of consent by the parent/guardian.
An educational organization can exercise best practices by informing parents at the outset, when contact information is initially requested, of the full range of potential calls that a parent/guardian or student should expect to receive. Please note that consumers may revoke consent to receive non-emergency, autodialed calls or texts by informing the educational agency. However, there is no requirement that an educational agency inform parents of their right to
Andrea F. Bennett
August 12, 2016
revoke consent. As such, school districts do not have to provide a form which asks parents or guardians whether or not they consent to non-emergency, autodialed calls. A school district simply must honor the request if it is initiated by a parent or guardian.
IV. Autodialers for Faculty and Employees
Though the FCC's Order mostly contemplates autodialers for parents or guardians and students, the Order does extend the emergency exception of the TCPA to cover calls to faculty and staff as well. In defining "emergency purpose," the FCC explicitly includes calls made necessary by situations affecting health and safety of faculty and other school staff members. Therefore, such autodialed emergency calls to school employees will be exempt from prohibition.
It should be noted that non-emergency calls to employees are not specifically contemplated by the 2016 FCC Order. Therefore, to autodial an employee for non-emergency purposes, even if the call might be closely related to the school district's educational mission, a school district should seek prior express consent from the employee.
We hope the foregoing is of assistance to you and the members of CETPA. As always, if you have any further questions or concerns, please do not hesitate to contact us.
FAGEN FRIEDMAN & FULFROST, LLP
A Gretchen M. Shipley GMS:RY
Download the Update
(Adobe PDF File)