COLLEGES AND THE TELEMARKETING CONSUMER PROTECTION ACT

New school owners and college and university directors may not be aware of the Telephone Consumer Protection Act. Under the act, unsolicited telemarketing calls made using Autodialed and/or, Robocalls, as well as SMS Text messages will now require prior express written consent from each consumer you contact though these means as of October 16th 2013. Simply having an established business relationship no longer exempts your school from the written consent requirements. Calls that are manually dialed and do not contain a pre-recorded message are exempt from the TCPA’s new requirements.

Failure to comply with the TCPA could make your school a target of government and private litigants. The TCPA provides for either actual damages or statutory damages ranging from $500.00 to $1,500.00 per unsolicited call/message. In determining the final amount of statutory damages to award, courts analyze whether the defendant “willfully” or “knowingly” violated the TCPA.  Considering that telemarketing campaigns often involve hundreds to thousands of calls, potential damages under the TCPA can be quite high.

Schools using third party lead generating services as well as those who rely on leads generated through their own website should review their policies for compliance with the new TCPA rules, specifically to ensure that their website contains the necessary voluntary consent language.

 

Clarification of Regulations Related to Incentive Compensation

The U.S. Department of Education issued updated guidance on incentive compensation last week after APSCU v. Duncan led the court to find that that the Department had not  adequately explained or supported its decision to ban compensation to an educational institution’s recruiters of students based on the students’ graduation from or completion of educational programs offered by the institution.

The regulations at 34 CFR §668.14(b)(22),implementing the statutory ban on enrollment-based compensation to recruiters of students, 20 U.S.C. 1094(a)(20), do not contain a ban on graduation – based or completion-based compensation.

The Department has changed its interpretation because, at this time, it lacks sufficient evidence to demonstrate that schools are using graduation-based or completion-based compensation as a proxy for enrollment-based compensation. In assessing the legality of a compensation structure, the Department will focus on the substance of the structure rather than on the label given the structure by an institution.

Thus, although compensation based on students’ graduation from, or completion of, educational programs is not per se prohibited, the Department reserves

the right to take enforcement action against institutions if compensation labeled by an institution as graduation-based or completion-based compensation is merely a guise for enrollment-based compensation, which is prohibited. Compensation that is based upon success in securing enrollments, even if one or more other permissible factors are also considered, remains prohibited.

You can read the full Federal Register here: http://bit.ly/1Uq1PDR

Eligible Career Pathway Programs – Questions and Answers

A student who does not have a high school diploma or its recognized equivalent, or who did not complete a secondary school education in a homeschool setting, may be eligible for Title IV, HEA student assistance through one of the ability-to-benefit (ATB) alternatives, but only if the student is enrolled in an eligible career pathway program.

Recently the U.S. Department of Education provided the following Questions and Answers to the Postsecondary Ed community. Continue reading Eligible Career Pathway Programs – Questions and Answers