Co-authored by Judith A. Endejan, attorney at Garvey Schubert Barer

As if public fundraising didn’t have enough challenges! In 2015 the Federal Communications Commission (“FCC”) issued a declaratory ruling on robocalling that could make public development staffs head for the aspirin bottles. Some nonprofits engage in “robocalling” as part of fundraising. This practice involves calls or text messages (the ruling affirms that SMS text messages are covered by the TCPA) made either with an automatic telephone dialing system (“autodialer”) or with a pre-recorded or artificial voice. It even includes internet-to-phone text messaging sent from a computer to a wireless phone. Robocalls can be used for many purposes as an efficient way to connect with supporters. However, their use is subject to restrictions in the Telephone Consumer Protection Act (“TCPA”), as interpreted by the FCC.

The most recent pronouncement by the FCC attempts to clarify its existing rules but really highlights the risks of robocalling that nonprofits need to be aware of. Of course, the safest practice might be to cease robocalling because the TCPA does not apply to calls or texts that are placed manually (i.e., by a person). If that does not work for your organization, then be aware of key aspects of the FCC’s “clarified” rules.*

1. The Basics

Here is a brief refresher on the elements of the TCPA:

For-profit:

• Robocalls require express written consent.
• Cannot call those on National Do Not Call registry (must search it every 31 days, and must maintain company-specific DNC list.)
• Must ID organization and telephone # at start of call.
• Consent cannot be transferred.

Nonprofit:

• Robocalls require prior express consent (oral or written) and no consent for residential landline.
• Exempt from DNC restrictions.
• Must ID organization and telephone # at start of call.
• Consent cannot be transferred.

Telemarketers acting for nonprofit:

• Robocalls require prior express consent (oral or written) and no consent for residential landline.
• Exempt from DNC restrictions but must comply with entity-specific DNC requirements under TSR.
• Must ID organization and telephone # at start of call.
• Consent cannot be transferred.

Mixed commercial calls (i.e. gives gifts for contributions):

• Robocalls require prior express written consent
• Exempt from DNC restrictions.
• Must ID organization and telephone # at start of call.
• Consent cannot be transferred.

2. The Question of Technology: Are You Really Robocalling?

Today’s world is exploding with new devices for communication and apps that can be used on new communications devices. Creative marketers collaborate with techno-geeks to devise innovative ways to reach out to mass markets via texts, emails, and calls. Whether the equipment involved constitutes an “autodialer” can be a difficult question to answer under the ruling, which defines “autodialer” quite broadly. According to the FCC, an autodialer is equipment that has the capacity to store or produce and dial random or sequential numbers even if it is not used for that purpose at the time of calling. “Capacity” is not limited to the current configuration of the device but includes “potential” functionalities.

The FCC recently amended its requirements (47 C.F.R. § 73.1216) concerning station-conducted¹ contests to allow stations to post contest rules online rather than announce them over the air. The revised FCC requirements permit, but do not mandate online disclosure of contest rules.

Over the past five years, the FCC has issued two fines for violations of its underwriting rules, but has entered into eight consent decrees with noncommercial stations accused of violating those rules. A recent Consent Decree with low power FM station WQAZ-LP shows why consent decrees have displaced forfeitures (FCC-speech for “fines”) as a way of resolving underwriting complaints, but also why consent decrees are difficult to translate into guidance for future compliance.