FCC to Rule on Auto-Text/Auto-Call Liability

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(EDUCAUSE telecommunications policy advisor, John Windhausen of Telepoly Consulting, provided the primary content for this post.)

The Federal Communications Commission (FCC) is scheduled to adopt a ruling on June 18 to limit “robocalls” placed by automated dialers as well as to address a variety of other issues about telemarketing calls. The FCC is authorized to protect consumers against such calls by the Telephone Consumer Protection Act (TCPA), which Congress passed in 1991. One of the issues that the FCC may address is whether educational institutions - such as EDUCAUSE members - are potentially liable when they auto-call or auto-text someone who has not given prior consent to receiving such communications. This can happen if a student or parent initially provides a mobile phone number and agrees to those communications, but then drops the number and it is subsequently re-assigned to another consumer.  

Blackboard filed a petition with the FCC in February asking the Commission to clarify that it and educational institutions using its mass notification system should not be held liable for calls or texts mistakenly placed to non-consenting consumers. Blackboard noted that lawyers are taking advantage of the penalties in the TCPA to launch frivolous lawsuits, thus raising concerns about the potential for Blackboard and its institutional customers to face such suits. EDUCAUSE filed brief reply comments supporting Blackboard’s petition on May 7. In particular, the association emphasized the importance of ensuring that institutions do not face penalties for auto-texts or –calls sent in good faith to phone numbers for which they might reasonably assume consent. EDUCAUSE also cited other filings that note Higher Education Act requirements for institutions to deploy emergency notification systems and the potential of a negative FCC ruling to run counter to the goals that those provisions are intended to achieve.

Several Democratic members of Congress have written to the FCC urging it not to weaken its regulatory stance on telemarketing calls, and it is not clear that the Blackboard petition will be granted. The FCC Chairman’s blog post last week said, "We also close the ‘reassigned number’ loophole, making clear that consumers who inherit a phone number will not be subject to a barrage of unwanted robocalls OK'd by the previous owner of the number.” The FCC’s fact sheet indicates, though, that callers may make one call to a reassigned number without facing liability, but not more than that: "If a phone number has been reassigned, callers must stop calling the number after one call. (Applies to wireless and landline home service.)”

Under the FCC’s rules, there is no liability for non-commercial calls placed to residential landline telephone numbers, but such protection does not exist for non-commercial calls or texts to mobile phone numbers. Thus, another gray area that the FCC may clarify is whether or not a non-commercial call or text mistakenly made by a college or university to a non-consenting wireless customer constitutes a violation of the TCPA.

The complexity of TCPA issues and the political pressures that the FCC faces mean that its decision on June 18 is likely to generate further controversy. EDUCAUSE will continue to monitor developments in this space as they take shape. For additional information, please see:

  • The FCC filing on this issue by NACUBO [http://www.nacubo.org/Documents/Initiatives/NACUBO_comments_to_FCC_on_TCPA_CG_Docket_02_278_5.7.15.pdf].
  • The ACUTA member alert about the petition and associated concerns [https://www.acuta.org/acuta/legreg/042915b.pdf].