TCPA
Telephone Consumer Protection Act
With respect to the new “express written consent” provisions, the FCC has indicated that obtaining such consent pursuant to the Electronic Signatures in Global and National Commerce Act (“E-SIGN Act”) is sufficient to satisfy the new requirements. Specifically, the FCC mentioned “permission obtained via an email, Web site form, text message, telephone keypress, or voice recording” as valid forms of express written consent. In the event of an enforcement action or a consumer dispute, however, the telemarketer will bear the burden of proving that it obtained consent in accordance with the regulations.
Consumers who receive calls or text messages in violation of the TCPA may obtain statutory damages of $500 per violative call or text message, and up to $1500 per call or text for willful or knowing violations.
In October 2013, the Federal Communications Commission updated its implementing regulations to include the requirement that called parties must give “prior express consent” to receive autodialed or prerecorded calls to their cell phones. Text messages and short message service (SMS) are “calls” subject to the TCPA and its regulations.
Emergency calls and autodialed or pre-recorded calls made by a school district to a residential land line are not subject to the prior express consent requirement. However, for any routine, non-urgent messages, like notifications on school closings or information about upcoming events, sent to cell phones, school districts will need to have a system that allows each intended recipient to “opt-in” to receiving the messages.
The school district has the burden of demonstrating that it received prior express consent from the called party. Therefore, school districts are best served by obtaining the prior express consent in a writing signed, either electronically or physically, by the recipient. School districts should also ensure that the consent mechanism has clear instructions explaining that the individual is consenting to receive the autodialed or pre-recorded calls and text messages. To be clear, it is not sufficient to provide an opt-out option after sending a non-emergency message in violation of the TCPA.
The TCPA does not require the use of a particular opt-in method, which gives school districts the flexibility to choose the method that best meets their needs. Examples of opt-in methods include online sign-up forms or printed sign-up forms.
Other kinds of calls not impacted are as follows: Prerecorded informational calls, such as those relating to school closings and flight changes can continue to be available to consumers who wish to receive them. Further, prerecorded calls from entities regulated by the Health Insurance Portability and Accountability Act of 1996 to residences are exempt. Such non-commercial calls are also allowed by tax-exempt nonprofit organizations and political organizations.
Sources: http://thedma.org/tcpa/