Telephone Consumer Protection Act

On August 4, 2016, the FCC released a Declaratory Ruling confirming that schools and utilities making robo calls do not violate the TCPA under certain circumstances. The Ruling, addressed Petitions filed by Blackboard, Inc. and Edison Electric Institute and American Gas Association. Blackboard, Inc. requested 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," including messages made for unexcused attendances, alert messages in emergency situations (weather, fire, threats), outreach messages regarding school activities (teacher conferences, back-to-school night), and simple surveys allowing users to provide input. Eddison Electric Institute and American Gas Association asked the FCC to declare that when consumers provide their phone numbers to utility companies, they have consented to receive certain calls and messages related to their services.

The FCC ruled that:

• Schools can make autodialed calls and send autodialed messages to wireless phones without consent in emergency situations, including those described above.
• Schools may make non-emergency calls and send messages if the purpose is closely related to the school's mission and the called-party has provided the telephone number to the school, warning, however, that the phrase "closely related" would continue to be interpreted narrowly, and that it excludes calls or messages from schools about non-school, local community events.
• Utility companies have prior express consent to contact consumers who have provided a telephone number if the message is closely related to the utility service, which include messages about service outages, field work, notification of eligibility for low-cost services, and warnings about potential brown-outs.
• Utility companies with prior express consent can call to warn that failure to make a payment will result in loss of service, but after service is terminated, routine debt collection calls continue to be governed by existing rules and requirements.

The FCC declined to consider a request from schools that consent from an original subscriber constitutes prior express consent when the phone number is reassigned. In doing so, it cited 2015 Omnibus TCPA Declaratory Ruling, which concluded that callers are liable for calls to reassigned wireless numbers when the current subscriber has not consented, with a one-call safe harbor if the caller does not have actual or constructive knowledge of the reassignment.