Limited Relief from FCC Ruling on Auto-Dialing/-Texting

(August 7, 2015) (EDUCAUSE telecommunications policy advisor, John Windhausen of Telepoly Consulting, provided the primary content for this post.) In early June, I wrote about the then-pending action by the Federal Communications Commission (FCC) to clarify the application of the Telephone Consumer Protection Act (TCPA) to contemporary auto-dialing/auto-texting systems, including those used by colleges and universities. The FCC ruling has since been released, and it only partially addresses the concerns raised by Blackboard and several others who filed petitions with the FCC seeking guidance about their potential liability for communications sent via such systems. Unfortunately, colleges and universities may face potential TCPA liability for auto-calls or auto-texts placed to cell phone numbers no longer held by the individuals who initially provided them to the institution.

When managing the contact lists on which their auto-dialing/auto-texting systems rely, colleges and universities, and any relevant service providers, must contend with students and/or parents dropping, without notice, the “contact numbers” they previously provided to the institution. A cellular company, for example, may then transfer such a number to another consumer who has not consented to receive auto-calls or auto-texts from the institution. When the college or university calls or texts the number – even for informational (non-telemarketing) reasons – it may then be liable for damages under the TCPA for auto-dialing or auto-texting a non-consenting party.

Citing a doubling of consumer complaints about unwanted calls and texts to cell phone numbers between 2010 and 2012, the FCC decided to take a tough “consumer protection” approach to the problem. Its order relieves auto-dialing/auto-texting parties, including educational institutions, of liability for one – and only one – auto-call or auto-text placed to a number for which the sending party had reason to believe it had consent, but no longer does. Relevant sections of the order are quoted at the end of this post, but the key points for EDUCAUSE members are as follows:

1. The FCC’s ruling does not respond directly to Blackboard’s petition, but it does deal with many of the issues that Blackboard raised. 
2. The FCC defines “autodialers” as any equipment that has the “capacity” to make automated calls; this would appear to include systems like the Blackboard Connect “mass notification platform” that led to Blackboard’s FCC petition.  
3. Express consent of the current holder of a cell phone number is required for non-emergency messages sent via auto-dial/auto-text systems.
4. The party sending the auto-dialed or auto-texted communication is responsible for proving that it received express consent to do so if challenged.
5. The party using an auto-dial/auto-text system can place only one such communication to a number for which it reasonably believes it has consent before ceasing automatic communications to that number if it is no longer held by a consenting party.
6. The holder of a number can indicate in any reasonable way, orally or in writing, and at any time that s/he does not consent to auto-dialed or auto-texted communications.
7. The “one call rule” does not make allowances for whether the one call or text is actually heard or read by the current number holder, or whether it generates a confirmation to the sending party that the current holder does not consent to such contacts.
8. This implies that the FCC declined Blackboard’s request to create a permanent exemption from liability when an educational institution unknowingly auto-calls or auto-texts a nonconsenting recipient.
9. Instead, the FCC order encourages organizations to make use of new marketplace technologies as well as mass-communication best practices to prevent mistaken contacts.
   1. For example, it cites services by companies like Neustar that maintain up-to-date databases of wireless numbers, against which contact lists could be checked.
   2. It also highlights best practices like asking contacts to notify the organization if they drop their number and/or regularly emailing contacts to confirm their current number.

The FCC can issue fines of up to $16,000 per incident under the TCPA, and affected consumers have the right to file private lawsuits as well. Thus, institutions relying on mass notification systems should check to ensure that they have taken appropriate measures to maintain the currency of the contact lists those systems utilize. Meanwhile, EDUCAUSE will watch for further TCPA developments that could impact our members.

Select Sections from the FCC’s 2015 TCPA Ruling:

"To reiterate and simplify the relevant portions of the TCPA, and as a guide to the issues we address below: if a caller uses an autodialer or prerecorded message to make a non-emergency call to a wireless phone, the caller must have obtained the consumer’s prior express consent or face liability for violating the TCPA. Prior express consent for these calls must be in writing if the message is telemarketing, but can be either oral or written if the call is informational."

"…, if any question arises as to whether prior express consent was provided by a call recipient, the burden is on the caller to prove that it obtained the necessary prior express consent.”

“The Commission’s policy, consistent with the plain language of the TCPA, is to treat informational and telemarketing calls to wireless phones the same.  We do so again today, and find no reason here to differentiate the two.”  

"We clarify that the TCPA requires the consent not of the intended recipient of a call, but of the current subscriber (or non-subscriber customary user of the phone).”  

"Consumers have a right to revoke consent, using any reasonable method including orally or in writing. Consumers generally may revoke, for example, by way of a consumer-initiated call, directly in response to a call initiated or made by a caller, or at an in-store bill payment location, among other possibilities.”

"We clarify, however, that callers who make calls without knowledge of reassignment and with a reasonable basis to believe that they have valid consent to make the call should be able to initiate one call after reassignment as an additional opportunity to gain actual or constructive knowledge of the reassignment and cease future calls to the new subscriber. If this one additional call does not yield actual knowledge of reassignment, we deem the caller to have constructive knowledge of such.”

"We interpret the TCPA to permit the caller to make or initiate one additional call to a reassigned number, over an unlimited period of time, where the caller does not have actual knowledge of the reassignment and can show that he had consent to make the call to the previous subscriber or customary user of the number.”