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Business and Policy Areas
Business and Policy Areas
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FCC Clarifies Rules on Calls to Cell Phones

August 10, 2015

The Federal Communications Commission (FCC) issued a declaratory ruling on July 10 in response to petitions from a number of organizations and businesses, including NACUBO, seeking clarity on the terms of the Telephone Consumer Protection Act (TCPA) with regard to calls and texts to cell phones. TCPA rules prohibit the use of autodialers and prerecorded messages when calling cellular phones unless the caller has prior consent. Violation of the TCPA rules can result in damages ranging from $500 to $1,500 per instance and are increasingly the target of large class action lawsuits.

Under the TCPA, a device is considered an autodialer if it has "the capacity to store or produce telephone numbers to be called, using a random or sequential number generator" and has the capacity to dial those numbers. Petitioners had asked for clarification that capacity meant the equipment's current rather than potential capacity. The FCC declined to do so, instead stating that if equipment could be modified so that it met that definition, it is considered an autodialer under FCC rules. This means, for instance, that a college using its student information system to send text messages to students who haven't completed their financial aid forms is using an autodialer under the TCPA and must ensure it has appropriate consent to do so.

Obtaining Consent
A caller needs to obtain consent before using an autodialer or prerecorded message to make a call or send a text to a cell phone. Communications in emergency situations are exempt from this requirement. 

In the ruling, the FCC clarifies that "for non-telemarketing and non-advertising calls, express consent can be demonstrated by the called party giving prior express oral or written consent or, in the absence of instructions to the contrary, by giving his or her wireless number to the person initiating the autodialed or prerecorded call."  While this appears to decrease liability for colleges and universities, NACUBO encourages member institutions to always obtain express consent from students before contacting them-or having an agent contact them-using autodialers or prerecorded messages.  Model language for obtaining this consent is included in the NACUBO Advisory Report 2015-1, Best Practices for Financial Responsibility Agreements with Students.

The ruling also reminds callers that an individual can revoke his or her consent at any time and through any reasonable means.

Reassigned Numbers
Often, TCPA violations occur when a caller contacts a number for which it had obtained consent, only to find that someone else now owns the number. To avoid this, many petitioners asked the FCC to define "called party" as it relates to consent to mean the intended recipient of a call, not the current subscriber.  Instead, the FCC ruled that the "TCPA requires the consent not of the intended recipient of a call, but of the current subscriber." 

The FCC ruling allows those that have consent and make calls without knowledge of a reassignment to initiate one call to the new subscriber without penalty, stating that this will "provide an additional opportunity to gain actual or constructive knowledge of reassignment and cease future calls to the new subscriber."  The one call limit holds even if the recipient does not object, respond, or inform the caller that the number has been reassigned. This ruling seems to render callers, including colleges and universities, vulnerable for inadvertent violations. Schools should ensure that they have processes in place to keep student phone numbers up to date.

RESOURCES

FCC Final Rules on TCPA (June 11, 2012)
NACUBO Comments on Blackboard Petition (May 7, 2015)
NACUBO Comments on Communication Innovators' Petition (November 15, 2012)
NACUBO Comments on FCC Proposed Rules (May 21, 2010)

Contact

Anne Gross
Vice President, Regulatory Affairs
202.861.2544
E-mail

Bryan Dickson
Senior Policy Analyst
202.861.2505
E-mail