By Laura H. Phillips and Laura K. Layton
As we’ve noted in the past, there are a number of TPCA petitions for declaratory ruling or requests for interpretation of the TCPA statute or FCC rules on a range of issues relating to the definition of an autodialer, seeking a range of common sense rules or processes for dealing with recycled number issues, among others. A recently filed Petition, by Blackboard, Inc. (“Blackboard”), represents a new wrinkle in the fabric of interesting technological and practical challenges under the TCPA that can adversely affect the delivery of important and timely information to parties interested in receiving it. Blackboard is an educational services platform provider seeking clarification from the FCC that the TCPA does not apply to “informational, non-commercial, non-advertising, and non-telemarketing autodialed and prerecorded messages sent by Blackboard’s educational institution customers because those calls are made for ‘emergency purposes.’”
While the TCPA requires callers that contact wireless telephone numbers to obtain the called party’s prior express consent to send informational autodialed or prerecorded calls, the statute does not require prior consent to receive autodialed or prerecorded messages to cell phones made for emergency purposes, which is defined as calls “made necessary in any situation affecting the health and safety of consumers.” 47 C.F.R. 64.1200(F)(4). The FCC’s Public Notice seeks comment on Blackboard’s specific request that “all automated informational messages sent by an educational organization via a recipient’s requested method of notification are calls made for ‘emergency purposes’” and thus would fall outside TCPA prior consent regulations. Comments on the petition are due by April 22, 2015, and reply comments are due by May 7, 2015.
Blackboard’s petition is the second recent one seeking clarification about the scope of informational, autodialed or prerecorded messages made for emergency purposes. See Edison Electric Institute and American Gas Association Petition for Expedited Declaratory Ruling, CG Docket 02-278, filed February 12, 2015. Both petitions cite either existing or threatened private actions, the significant risk of future litigation, and the potential for enormous damages as reasons the companies have asked the FCC to “issue a declaratory order to terminate a controversy or to remove uncertainty.” 5 U.S.C. § 554(e); 47 C.F.R. § 1.2.
Blackboard itself does not physically initiate or place the call or message. Rather, the company offers its educational customers a notification platform, accessed via a web portal. This arrangement allows customers the ability to send mass notifications to parents, faculty, and others “regarding emergency weather closures, threat situations, event scheduling, or to provide other important education-related information.” Each education customer drafts and distributes institution-specific informational messages, which can be sent as automated or prerecorded calls to either a wireline or wireless number, as texts, or as emails, or sent simultaneously using all methods as determined by the educational institution. As Blackboard describes its service arrangements, each customer is responsible for obtaining recipients’ prior express consent for messages to be distributed and for entering such consent designations in Blackboard’s web portal.
Blackboard’s petition asserts that consumers want and expect to receive automated, non-telemarketing education-related messages on their cell phones and that these messages are placed for “emergency purposes” as that term is used in the statute. Citing the legislative history that demonstrates the Congressional intent for the scope of the TCPA’s emergency purposes exception is broad, Blackboard requests that FCC declare all school-initiated informational messages be considered sent for emergency purposes because the attendance, outreach, survey, or emergency messages provide information “affecting the health and safety” of the school community so that there is no need to resort to less effective means to communicate important, time sensitive messages.
Blackboard also asks the FCC to create a good-faith exemption from TCPA liability and to declare that automated informational messages sent to a wireless telephone number constitute calls made with “prior express consent” when that number “has been provided to the caller as a means of providing information” to the recipient, “even if the wireless telephone number later is in use by another consumer.” Finally, Blackboard seeks a declaratory ruling that a “called party” refers to the “intended recipient” of the automated informational messages. Blackboard explains the impossibility of each organization confirming whether the subscriber to the wireless number has changed before every autodialed or prerecorded call is made, and “[t]he inherent benefit in utilizing automated messages—reaching a large number of people as quickly as possible (especially in the context of an emergency school closing or student body threat)— would be lost if organizations were required to use live operators to place informational calls to avoid exposure to potential liability for wireless telephone numbers reached in error.” Blackboard argues that it is inconsistent with the TCPA’s purpose for Blackboard and its educational customers to be liable for damages under the TCPA or FCC rule provisions when informational messages are transmitted to wireless numbers for emergency purposes or when the educational customer has obtained consent but failed to reach the intended recipient because the number has been reassigned or forwarded or due to some other good-faith error.