Posted: September 21, 2016
What’s new with the FCC’s recent Declaratory Ruling impacting education and utility service providers? The short answer: not much.
The FCC was busy the last couple of months issuing two Declaratory Rulings regarding the TCPA. In August, the FCC released its Declaratory Ruling in response to petitions by Blackboard, Inc. (Blackboard) and jointly the Edison Electric Institute and the American Gas Association (EEI/AGA). Generally, the FCC provided slight relief to these industries in a very specific set of circumstances.
In its petition, Blackboard requested all automated calls and texts by schools to qualify for the TCPA’s “emergency purpose” exemption from consent requirements. Telemarketing calls or texts to wireless numbers using these automated methods require prior express written consent, but emergency calls are free from this requirement. Predictably, the FCC denied the request. The FCC also, in a bit of hand-waving, said schools are allowed to deliver non-emergency automated calls or texts to students for purposes “closely related” to the school’s mission as long as prior express consent is provided. More on “closely related” later.
EEI/AGA asked for the act of providing your wireless number to a utility be considered prior express consent to receive informational automated calls, among other things, and this request was partially granted. Partial because the FCC only allowed this for calls “closely related” to customers’ utility services, and not generally. With an arguably more prudent approach than Blackboard, EEI/AGA modified its petition and removed any requests for a ruling on the emergency status of utility calls to avoid any sweeping decisions from the FCC.
Shrewdly, the FCC did not define “closely related” in the Ruling, and stressed it would continue to narrowly interpret its meaning. “Closely related” calls included, but were not limited to, those calls provided for example by the petitioners in their petitions.
So what does all this mean? That, essentially, not much has changed. In the Ruling, the FCC reiterated several already-existing prohibitions on automated calls (ATDS calls, prerecorded messages, automated text messages) and its definition of emergency calls. And because all automated calls the FCC considered in its Ruling to be “closely related” were already informational calls, they still require prior express consent to deliver to a wireless number. What’s new here is that the FCC merely confirmed the informational/solicitous nature of a small subset of calls in two very specific industries. The introduction of “closely related” may continue to spark discussion, uncertainty, and debate, however.
For questions about how this recent FCC Declaratory Ruling or other regulatory decisions may affect your organizations, please reach out to us at firstname.lastname@example.org.
Mark Baker, a Consultant at CompliancePoint, focuses on providing accurate and relevant compliance consultation on US federal and state consumer contact requirements to clients in a variety of industries. He assists clients with mitigating the risks associated with direct marketing by helping to refine the processes and procedures necessary to comply with consistently changing and complex consumer contact requirements. Mark earned his Customer Engagement Compliance Professional (CECP) certification from the Professional Association for Customer Engagement (PACE) and received his M.S. in Biology from Georgia State University, where he gained extensive experience researching complex topics.