Public Agencies Using Robocalls Have New Limitations/Obligations

The FCC issued two new orders placing additional limits on robocalls and outlining phone companies’ obligations to help in that effort. The orders, announced Dec. 30, follow a Dec. 14 order that extended robocall prohibitions to local government agencies.

One of the latest orders limits the number of exempted calls a local government agency can make without consent to three calls in a 30-day consecutive period. While the nature of most automated calls made by municipalities, school districts and special districts appear to fall outside the delivery restrictions that comprise prohibited calls (47 CFR §64.1200) the order caps making non-telemarketing robocalls to three calls per consecutive 30-day period. Previously, there was no limit on the number of non-telemarketing robocalls that any caller could make to a residence. In addition to the cap, the FCC now requires consumers be provided the opportunity to opt out of these calls using either of the mechanisms described in 47 CFR § 64.1200(b)(2). The crux of the Dec. 30 order is captured in paragraph 15, where the FCC states:

"We therefore amend our rules to limit the number of calls that can be made to a particular residential line pursuant to this exemption (non-telemarketing) to three artificial or prerecorded voice calls within any consecutive 30-day period. These limits give non-commercial callers several opportunities over a month long period to convey their message and to obtain consent for future calls."

Next Steps
In perhaps overly simplistic terms, if your government or agency employs artificial or prerecorded voice calls, be sure to document the consumer’s consent to make such calls, or limit such calls to no more than three in any consecutive 30-day period, while providing an option to opt out. The FCC provides a 6-month delay for callers to develop cost effective opt out options. (BB&K will distribute a Legal Alert when that date is established.)

What Constitutes Consent
In the Dec. 30 order, the FCC reaffirmed its 2016 Blackboard Edison TCPA Order in which it found a utility lawfully used its autodialer to call a customer “to warn about the likelihood that failure to make payment will result in service curtailment.” The rationale: the customer was deemed to have given “prior express consent” to be contacted under the TCPA. Despite addressing a request for schools to be exempted from the three-call limit, the FCC found such a waiver was not needed in the Dec. 30 order, explaining at footnote 43 “...many calls from schools …are emergency calls and thus do not require consent or, even if not an emergency, may already have consent where the consumer has merely provided the school with their phone number.”

Given the increasing reliance on automated communications during the COVID-19 pandemic, it’s important that public agencies are aware of the Dec. 14 order extending TCPA limitation to local governments and their agencies and the three-call limit of the Dec. 30 order. It would be prudent to review how your organization may be employing automated calls.

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