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Parent Communications and Prior Consent–Make Sure You Have It!

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August 5, 2014

Many school districts have welcomed and utilized automatic telephone dialing (i.e., “autodialing”) systems and text messages as means of communicating with students, parent and staff.  As your school district updates its communications plan and/or student/parent handbook for a new year, it’s important to revisit obligations with respect to these methods of communication under the Telephone Consumer Protection Act (the “TCPA”), particularly in light of the FCC rules that went into effect late last year.

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 pre-recorded calls to their cell phones. Text messages and short message service (SMS) are “calls” subject to the TCPA and its regulations.

“Emergency” calls made by a school district to a residential land line, such as in the instance of a crisis, 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. Warning to the “creative” thinkers:  it is not sufficient to provide an opt-out option after sending a non-emergency message.

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.  As such, it is best practice and recommended that schools include the notice in the annual student/parent handbook, a la the annual FERPA notice.  Other options include stand-alone opt-in or opt-out forms.  OPSRC legal services is available to assist you in ensuring that you do not run afoul of the TPCA.  An individual receiving a call in violation of the TCPA has the option to file a lawsuit, seeking injunctive (an order to stop an action) and monetary damages.

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Brad Clark

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