In the past few months, we’ve had a flurry of requests from schools about the legality of automated calls and text messages they are making to cell phones. The Telecommunications Consumer Protection Act (TCPA) governs the transmission of certain automated calls and text messages to cell phones, including calls and texts from public schools to parents. The TCPA law and implementing rules from the Federal Communications Commission (“FCC”), and specifically the interpretation of limits regarding public schools, have been on the books for years, but recent lawsuits against school messaging vendors and guidance from the FCC on the TCPA reaffirming the FCC’s position on school messages have led to renewed concern by schools that certain calls or texts may violate the law.
The most conservative approach under the TCPA is to obtain prior express written consent from parents for any phone number before placing any automated call or sending any automated text message to that number. Although there is an exception under the TCPA for informational calls to land lines from public schools, the reality in this day and age is that many parents do not have a home phone and provide their cell phone number as their home phone on school forms. Unless those forms or some other written authorization form makes it clear that informational calls or texts will be sent to the number provided, calls and texts to cellular numbers may be a violation of the TCPA if they are, even unwittingly, made to a cell phone.
Such a conservative approach can create serious health and safety concerns for schools, however, because of the impracticalities of obtaining consent. Failure to warn about a child’s absence from school or a school closing could place students in danger.
Such a conservative approach also may be unnecessary, because there is an exception to the cell phone call/text rule for “emergency” calls, which are defined by the relevant FCC regulations as “calls made necessary in any situation affecting the health and safety of consumers.” The Federal Communications Commission has suggested in guidance that it does not believe such language applies to all calls by schools, going so far as to say that informational calls about things such as school closures require prior express written consent. However, we believe that a strong argument can be made that many—or even all—school calls do fall under the emergency exception. Indeed, this is the position taken by a major education-notification company, Blackboard, Inc., in a FCC filing related to a TCPA lawsuit filed against Blackboard about calls and text messages it has sent on behalf of schools.
Even if a school district takes the conservative approach and adopts a policy that it will only send calls and texts to numbers on file for parents with prior written consent, it does not mean that it is precluded from sending all calls and texts to such numbers. Under the exception for emergency calls, there is no doubt that certain kinds of calls and texts from schools to cell phones about situations that are indisputably emergencies (like a school lockdown) are permitted without consent. Even schools that take the conservative approach to the TCPA may continue to make such emergency calls without parental consent. Because there are uncertainties about what constitutes an emergency, we advise that schools wishing to take the conservative approach work with legal counsel to determine what emergency calls should be made. For all schools, moreover, the flurry of warnings is a reminder to take steps to assess the types of automated calls and text messages that are being made to cell phones and to formulate a plan to mitigate or remove risks.