August 4, 2016–The FCC released a declaratory ruling today confirming that school callers can lawfully make robocalls and send automated texts to the wireless phones of students’ families without violating the Telephone Consumer Protect Act (TCPA). The ruling also said that utilities can make robocalls and send automated texts to customers about their service. The school calls and texts are permitted “pursuant to an ‘emergency purpose’ exception or with prior express consent,” while the utility calls are allowed “because their customers provided consent to receive these calls and texts when they gave their phone numbers to the utility company,” according to the Commission.
The declaratory ruling in CG docket 02-278 addresses petitions for declaratory ruling filed by Blackboard, Inc., Edison Electric Institute, and the American Gas Association.
It drew a partial dissent from Commissioner Jessica Rosenworcel. “The Commission goes a step too far when it deduces from its conclusion that schools may make certain calls in emergency situations—that any third party can also make a robocall or send a text message to any person under the auspices of an emergency,” she argued in a statement. “Nothing in the petitions before us sought such a sweeping conclusion. No rulemaking was started. No comment was sought from the public.
“Instead, the Commission takes the unorthodox approach of creating a third party carve-out and burying it in a footnote without proper notice or a full examination of its likely result,” the Commissioner added. “The Commission simply does not know what the consequences will be of inviting any third party to place a robocall or send a text. But given the number of complaints we receive on this subject, it is the Commission’s responsibility to thoroughly vet any potential changes to our robocall policies. While perhaps unintended, this overbroad conclusion has the potential to become a gaping loophole that multiplies the number of unwanted robocalls consumers receive. If it does, that would be a shame. It is certainly not the outcome consumers complaining to this Commission want.”
In his own statement, Commissioner Mike O’Rielly said, “I support the relief provided in this Declaratory Ruling, which should help schools and utilities provide information that their respective audiences want and need. The fact that the Commission must continually grant exemptions or clarifications to its TCPA framework for these and other valuable purposes, however, highlights that its interpretations of the law are overly restrictive, unrealistic, and unworkable. … While I am glad that the Commission is providing some modicum of relief for some of those that are forced to pursue it, I remain hopeful that the Commission’s general framework will be overturned in court (assuming the Commission does not see the error of its ways beforehand) and the Commission will chart a more rational course in the future.” – Paul Kirby, email@example.com