Background on the Telephone Consumer Protection Act

Congress enacted the Telephone Consumer Protection Act (TCPA) in 1991 to address the growing number of uninvited marketing calls, including calls made by local governments, schools and utilities. The TCPA restricts the making of calls using automatic telephone dialing systems and artificial or prerecorded voice calls, as well as telemarketing calls to numbers on the “National Do Not Call Registry.” There are generally two exceptions to TCPA enforcement: (i) calls made for emergency purposes and (ii) calls made with the called party’s prior express consent to receive such calls.

Over the succeeding 30 years, the Federal Communications Commission (FCC) has established regulations that interpret and enforce the TCPA. These implementing rules can be found at 47 C.F.R. § 64.1200. Navigating these rules and the FCC’s various Orders and Declaratory Rulings interpreting the TCPA can prove complicated for any caller, including local governments, looking to avoid liability for violations associated with artificial or prerecorded voice calls. And compliance is only becoming more difficult. In addition to the updated rules discussed below, just last week the FCC issued a Noticed of Proposed Rulemaking (which we’ll cover in more detail in a separate update) stating that it seeks to further modify the TCPA’s rules by strengthening consumers’ ability to revoke consent to receive robocalls and texts.¹

Callers must be mindful of these rules because liability can be massive — the TCPA allows for private rights of action with base statutory damages of $500 per violation, or $1,500 per violation if knowing and willful. Further, the TCPA does not prevent potential plaintiffs from also seeking damages under analogous state laws, which often have even larger statutory damage provisions.

In December 2020, the FCC issued a Report and Order² to update its TCPA rules in response to the passage of recent Congressional direction (the TRACED Act³ ) aimed at streamlining enforcement of “robocall” violations. The updated rules were published in the Federal Register in January of 2023, setting an effective date of July 20, 2023. Like TCPA rules in the past, these rules apply to local governments, school boards and municipal utilities.

Updated TCPA Rules

The FCC Report and Order implementing the TRACED Act (TRACED Order) adds restrictions to existing TCPA consent exemptions for artificial or prerecorded voice calls made to residential lines, even those made by local governments.

• Limit on Exempted Calls: Previously, if a call fell into an exempted category, namely non-commercial calls, commercial calls that do not include an advertisement or constitute telemarketing, tax-exempt nonprofit organization calls, and HIPAA-related calls (collectively, Exempted Calls) there was no limit on the number of artificial or prerecorded voice calls that could be made to a residential line without the recipient’s prior express consent. As of July 20, 2023, even these exempted calls will be limited to no more than three calls in a 30-day period (with the exception of HIPAA-related calls, which are limited to one call per day and a maximum of three per week).
• Opt-out Requirements: The TRACED Order imposes new disclosure and opt-out requirements on the categories of Exempted Calls listed above. The amended rules require that on all Exempted Calls to residential lines utilizing an artificial or prerecorded voice (1) the caller identifies him or herself (in the manner described in the Do-Not-Call Policy section below), and within two seconds of identifying themselves, (2) provides an interactive voice and/or key press-activated opt-out mechanism for the called person to make a do-not-call request. The caller must immediately terminate the call following a do-not-call request.
• Do-Not-Call Policy: The TRACED Order extends the TCPA’s company-specific do-not-call rules to any person or entity making Exempted Calls utilizing artificial or prerecorded voice, regardless of whether the calls are telephone solicitations.

Specifically, any person or entity making such calls must (1) maintain a written do-not-call policy that is available on demand, (2) train personnel on the existence and use of the do-not-call list, (3) record and honor do-not-call requests within 30 days, and (4) provide the called party with the name of the individual caller, the name of the person or entity on whose behalf the call is being made, and a telephone number or address at which the person or entity may be contacted.

Caveat: While the updated rules apply to calls to residential lines, federal courts have ruled that a cell phone can satisfy the residential telephone subscriber element of the TCPA’s rules.⁴

Local Government Guidance

In December of 2020, the FCC affirmed that “local government entities, including counties, cities, and towns, are ‘persons’ within the meaning of [the TCPA’s automated and prerecorded voice provision] and are, therefore, subject to the TCPA.”⁵ Local governments must be vigilant in ensuring TCPA compliance before sending any automated messages or calls. There are, however, exceptions to the rules that available local governments that may not be available to non-government callers.

Governments’ calls are more likely to be considered to be for emergency purposes and therefore not subject to TCPA liability. As the FCC held in its 2016 Blackboard/Edison Declaratory Ruling,⁶ the TCPA’s emergency purpose exception is to be interpreted broadly. Messages that relate to public health and safety (e.g., school closure notices, utility outages and maintenance notices, and COVID-19 alerts) are generally immune from TCPA rules. On the other hand, non-emergency messages (e.g., public meeting notices and court docket notices) could still be considered potentially subject to TCPA enforcement.

The Blackboard/Edison ruling also provided guidance on permissible calling practices for certain local government entities. The Edison ruling specified that certain public entities, such as schools and utility companies, are able to obtain prior express consent to send informational automated calls and texts when students’ parents/guardians and customers simply provide their contact information. This standard is significantly less arduous than the TCPA’s typical requirements for obtaining a recipient’s prior express consent to receive automated or pre-recorded calls.

FCC Chair Jessica Rosenworcel explained:

If you have provided energy and utility companies with your number, they can reach out to you when the power goes out, when service is being restored, and when dangerous work is being done on electrical facilities near your home. In other words, they have the ability to reach out to you when safety is at stake. Second, we make clear that schools, which act in loco parentis, can reach out to a student’s family or guardian in emergency situations.

Conclusion

The world of TCPA compliance can be difficult to navigate and presents liability landmines, even for local governments. With the rollout of the FCC’s new TCPA rules, we recommend that government and private entities alike seek legal guidance before employing the use of automated or prerecorded messages.