The Federal Communications Commission (FCC) has issued a Declaratory Ruling clarifying the application of the Telephone Consumer Protection Act (TCPA) to communications from schools and utilities. Specifically, the Ruling extends the "emergency purpose" exemption to certain calls and texts from schools and clarifies, for both schools and utilities, the scope of prior express consent established when a consumer provides a wireless number. The August 4, 2016, Ruling is the result of petitions filed in February 2015 from Blackboard, Inc., Edison Electric Institute, and the American Gas Association.

For schools, the Ruling establishes that certain robocalls and automated texts may be sent to student family wireless phones without prior express consent pursuant to the "emergency purpose" exception. The Commission's rules define "emergency purpose" communications as those "made necessary in any situation affecting the health and safety of consumers." The exemption covers messages related to weather closures, fires, dangerous persons, health risks (such as toxic spills), threats, and unexcused absences. However, the Ruling encourages schools to regularly update their emergency call lists to prevent communications with consumers not connected to the school and declined to revisit the liability standards for contacting reassigned wireless numbers established by its 2015 Omnibus Order.

The Commission also reiterated that, although the scope of consent given can vary depending on individual factual circumstances, when the called party provides a number to a school, he or she provides prior express consent to receive certain non-emergency calls or texts. Such communications include notifications relating to an upcoming teacher conference, general school activity, or other events "closely related" to the school's educational mission. The ruling notes that communications related to "non-school" or "community events" would likely fall outside the scope of consent provided when the school fails to disclose that individuals may receive such communications by providing a wireless number.

For utilities, the Commission did not consider what communications qualify for the "emergency purpose" exception. Instead, the Ruling clarifies that consumers who provide wireless numbers when they sign up to receive service or subsequently update their contact information provide prior express consent to receive messages "closely related to the utility service." Such messages include warnings about planned or unplanned service outages, notifications of service restoration, requests for confirmation of outages or restoration, notices of field work (such as meter upgrades or tree trimming), notifications about eligibility for low-cost services, and warnings about potential brown-outs due to heavy energy usage. The Ruling also notes that the consumer consents to receive calls warning that failure to make payment will result in service curtailment, but not post-service termination debt collection calls.

The Ruling reiterates that consumers may withdraw consent in any reasonable manner that clearly expresses a desire not to receive further messages and that callers may not designate an exclusive means for revoking consent.

Members of Ballard Spahr's Consumer Financial Services and Privacy and Data Security Groups regularly advise financial institutions on the ever-expanding intersection between consumer financial services laws and privacy and data security issues. We work with clients to evaluate, operationalize, and monitor new and existing products and services to ensure that financial institutions meet their privacy and data security obligations in a rapidly evolving regulatory landscape.

Copyright © 2016 by Ballard Spahr LLP.
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