In a recent announcement, the Federal Communications Commission (FCC) asked for public comments on a petition to relax some of the Telephone Consumer Protection Act's (TCPA’s) requirements for educational organizations. If granted, the petition would allow educational organizations to make autodialed informational calls to parents and students as "emergency" calls that are exempt from the TCPA's prior express consent requirements. Given the growing threat of TCPA class actions, educational organizations that send text messages or make prerecorded calls to parents and students should consider submitting comments on this latest petition.

The TCPA requires organizations that contact consumers' cell phones through autodialed or prerecorded phone calls to obtain the recipients' prior express consent first. Under a narrow exception, however, the TCPA provides that calls for "emergency purposes" may be sent without the recipients' prior express consent. The TCPA provides consumers with a private right of action and sets statutory damages at $500 per violation.

The FCC is now requesting comments on a petition for declaratory ruling filed by Blackboard, Inc., that asks the FCC to find that autodialed and prerecorded informational calls made by educational organizations are "emergency" calls exempt from the TCPA's prior express consent requirements. Blackboard argues that Congress intended for the emergency purposes exception to be interpreted broadly, and that "all school-initiated informational messages should be considered sent for 'emergency purposes.'" These could include attendance messages, emergency messages—such as school closings—or outreach messages about scholastic activities.

Alternatively, the petition asks the FCC to clarify that a consumer provides prior express consent to receive informational messages when providing his or her cell phone number to the calling party. Blackboard's petition asks the FCC to find that this consent is valid even if the phone number is ported to a new consumer. Because consumers regularly change their cell phone numbers, the petition argues it is impossible for educational organizations to verify that the number belongs to the intended recipient. This request echoes a number of petitions already pending before the FCC.

The FCC seeks comments on whether such informational calls from educational organizations are sent for "emergency purposes" and whether consumers consent to receive autodialed and prerecorded informational calls by providing their phone number to the calling party. This latest request highlights the growing threat of TCPA class action litigation to entities not engaged in telemarketing. It is hoped that the growing volume of petitions will spur the FCC to act soon and provide guidance to all organizations that contact consumers' cell phones.

Educational organizations that send autodialed calls, such as text messages, to students and parents should ensure that they have obtained the necessary consent to do so, and should consider submitting comments to this latest petition. Attorneys in Ballard Spahr's Higher Education and Privacy and Data Security Groups stand ready to assist educational organizations with submitting comments to the FCC and regularly counsel clients on TCPA compliance.

The firm has also created a TCPA Task Force to assist clients in navigating the complex and challenging issues that arise under the TCPA. The task force, which comprises regulatory attorneys and litigators, counsels on avoiding TCPA liability, including reviewing policies and practices, and helps to design mobile text message and prerecorded and autodialed call campaigns. It also assists clients in handling scrutiny from regulators, including preparing for examinations, responding to investigations, and defending against enforcement actions. In addition, task force members defend clients against TCPA class or individual actions.

For more information, please contact Daniel JT McKenna at 215.864.8321 or mckennad@ballardspahr.com, Daniel V. Johns at 215.864.8107 or johns@ballardspahr.com, Dee Spagnuolo at 215.864.8312 or spagnuolod@ballardspahr.com, or Mark J. Furletti at 215.864.8138 or furlettim@ballardspahr.com.


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