US Supreme Court expands digital privacy rights in Carpenter v. United States

On August 4, 2016, the Federal Communications Commission (FCC) released a declaratory ruling clarifying the scope of the Telephone Consumer Protection Act’s (TCPA) consent requirements to send robocalls and automated text messages to wireless phone numbers.  The ruling was in response to Blackboard, Inc.’s request that the FCC declare “all automated informational messages sent by an educational organization” as within the scope of the TCPA’s “emergency purpose” exception.  While the FCC granted Blackboard’s request in part, it also expanded its ruling to address automated messages provided by utilities.

Generally, the TCPA requires companies to obtain prior express consent before making automated calls or text messages to wireless numbers (i.e., using an autodialer or prerecorded message).  A limited number of exceptions apply, including for messages made for emergency purposes, defined as “necessary in any situation affecting the health and safety of consumers.”

Educational Institutions

The FCC has now ruled that schools can rely on the emergency purpose exception to make automated calls and send automated text messages, as long as the messages concern the health and safety of students and faculty.  Examples of permitted messages include those regarding weather closures, dangerous persons, and unexcused absences.  For other, non-emergency automated messages that are related to the school’s “educational mission,” the FCC has ruled that providing a wireless number to a school satisfies the requirement for prior express consent.  Thus, schools can also send automated messages regarding school events such as parent-teacher conferences to wireless numbers that students, parents, and faculty provide to schools for communications.

Utilities

The FCC also has ruled that consumers who share their wireless numbers with their utility providers have consented to receiving robocalls and automated text messages from the utility “concerning matters closely related to the utility service.”  Examples of permitted calls and texts include service outage messages, communications about electric meter work or other field work that affects a customer’s utility services, messages about eligibility for subsidized or low-cost services, and calls about potential brown-outs due to heavy energy usage.

Our Take

The FCC’s declaratory ruling is a welcome step in clarifying the scope of the TCPA.  The ruling should prompt educational institutions and utilities to review their mobile calling and messaging programs to take advantage of the new rules to improve their services.  While there is reason for optimism, organizations should continue to remain vigilant with respect to TCPA compliance, given that the law has been fertile ground for class action litigation.  Organizations should ensure that they retain records of individuals providing their mobile phone numbers and carefully vet programs that rely on the FCC order’s interpretations for consistency with the FCC ruling.