Before the FEDERAL COMMUNICATIONS COMMISSION Washington, DC 20554 In the Matter of Blackboard Inc. Petition for Expedited Declaratory Ruling Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991 ) ) ) ) ) ) ) CG Docket No. 02-‐‑278 Reply Comments of EDUCAUSE on the Blackboard Inc. Petition for Expedited Declaratory Ruling EDUCAUSE is pleased to file these reply comments in support of the Petition for Expedited Declaratory Ruling filed by Blackboard Inc. (“Blackboard”). EDUCAUSE is a nonprofit association whose mission is to advance higher education through the use of information technology. EDUCAUSE supports those who lead, manage, and use information technology in higher education through a comprehensive range of resources and activities, including analysis, advocacy, community building, professional development, and knowledge creation. The current membership comprises more than 2,400 colleges, universities, and related organizations, including over 340 corporations, with more than 68,000 active members (www.educause.edu). EDUCAUSE supports the argument made by Blackboard and others that neither Blackboard nor any of the educational customers that use its services should be held liable for phone calls, text messages, and emails that are mistakenly sent to parties’ wireless numbers when the educational institution previously received consent from the owner of that wireless phone number. As the Petition notes, educational institutions generally obtain consent to make calls and send messages to a wireless customer for legitimate, non-‐‑commercial, informational purposes, such as for emergency situations affecting public health and safety, school closings or events, and for other administrative or non-‐‑commercial purposes. The Telephone Consumer Protection Act (TCPA) was not enacted to limit the transmission of this kind of information. As Blackboard notes, however, the TCPA could be interpreted as subjecting educational institutions to liability when a non-‐‑commercial message is inadvertently sent by the institution to a person who has not given his or her express consent to receive such messages. This can happen for a variety of reasons that are beyond the institution’s control – for example, the customer has dropped the telephone number and it has been re-‐‑assigned to another customer, the call is forwarded to a different number, or the number was provided incorrectly by the owner of the number. We share the concern that educational institutions might be discouraged from using educational systems like Blackboard’s that incorporate mass notification services if they risk penalties every time they use such a service. Public safety laws and policies are encouraging greater communications between institutions and their student population. As the comments of Washington University in St. Louis highlight, the Higher Education Opportunity Act of 2008 obligates higher education institutions to develop campus emergency notification systems.1 Subjecting educational institutions to the payment of (sometimes substantial) penalties could have the opposite effect of restricting institutions from providing such information by delaying their implementation of campus emergency notification systems. Blackboard and others have proposed a variety of solutions to this problem, including the suggestion that the Commission should create various forms of “exemptions” for all calls from an educational customer of Blackboard’s service. While these approaches are worthwhile, another approach is for the Commission simply to declare that educational institutions shall not be subject to liability or penalties when they have acted in “good faith” to maintain an accurate list of wireless phone numbers for which consent has been given. Blackboard notes that the Commission has recognized such good faith exemptions to the TCPA in other circumstances, such as when calls are ported from a wireline service to a wireless provider or were not knowingly made to a wireless number. Immunity from liability is warranted because the most effective way for the college or university to verify that every single phone number is still owned by the consenting party is to call the phone number. In other words, if no immunity from liability is provided, even the act of verifying a called number could itself subject the college or university to liability. Such a result is patently unfair and would discourage See Comments of Washington University in St. Louis in this proceeding, filed May 4,
2015.
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good faith efforts to maintain accurate records. The Commission should issue a declaratory ruling that, if an educational institution develops and implements procedures to obtain the consent from the wireless customer and maintains records to demonstrate that it is acting in good faith to prevent unwarranted calls to customers who do not wish to receive them, the educational institution is immune from penalties under the TCPA. Conclusion Institutions of higher education are increasingly responsible for the health and safety of students, faculty, and staff on campus. Ensuring that these institutions can provide telephone and text notifications to wireless numbers that have been voluntarily provided to the institution is an essential component of their efforts to carry out this responsibility. Educational institutions should not be subject to potential liability when they inadvertently send a message to a wireless customer that has not provided such consent as long as the institution acts in good faith to maintain accurate records. EDUCAUSE urges the Commission to grant the Blackboard Petition as set forth above. Sincerely, Jarret S. Cummings Director, Policy and External Relations EDUCAUSE