FCC Ruling Addresses TCPA Issues for Electric Utilities
Last month the Federal Communications Commission (FCC) issued a declaratory ruling regarding certain exceptions to the Telephone Consumer Protection Act (TCPA). The TCPA regulates how businesses communicate with their customers via automated text messages and robocalls, generally requiring some form of prior express consent from the call recipient. This recent ruling addressed, and in some instances carved out, certain texts and robocalls from the general prohibitions of the TCPA for schools and electric utilities. We have previously written on the unique issues electric utilities face when attempting to comply with the TCPA. This ruling clarified a discrete number of those issues for electric utilities but left a number of questions unanswered. This article will briefly present the key holdings of the ruling and also highlight areas that remain unclear.
Possibly the biggest victory for electric utilities is the specific holding that text messages and automated calls regarding outages and planned maintenance fall squarely within the prior consent granted by customers when providing a wireless number as a point of contact for the utility. The FCC agreed that these communications are welcomed by customers and also assist in providing safe, efficient and reliable utility service. As such, the TCPA does not prohibit such texts or automated calls. Interestingly, the FCC ruling declined to address whether such messages fall within the emergency exception of the TCPA, which allows for otherwise impermissible communications in the event of an emergency. Given this omission, the ruling failed to provide any additional guidance as to how or when the emergency exception may apply to a utility’s communications with its customers.
An additional victory for electric utilities is the statement by the FCC that contact information obtained during the course of the business relationship—and not just at the initial sign up—can provide the necessary prior express consent required from a customer. Though seemingly innocuous, a great battlefield of the TCPA lies in the significance afforded to updated terms and conditions. While the FCC has not stated that updated contact information coupled with updated terms and conditions can create the appropriate consent needed for automated texts and robocalls, this recent ruling provides additional support for the argument that updating terms and conditions is a valid means to capture consent.
More broadly, the FCC made clear in this ruling that the primary factor in determining whether a utility has appropriate consent to send automated texts or to robocall its customer on a wireless phone is whether the content of that communication is “closely related” to the services the customer sought to receive when initially providing the cell phone number to the utility. Stated differently, utilities should ask what type of communications the customer expected to receive in the future when providing a wireless phone number. If the communication is closely related to that service, no TCPA issues arise. Of note is the FCC’s strong urging in the ruling for utilities to notify customers of the expected use of the cell phone number at the time such number is provided.
Questions remain, however. In addition to planned maintenance and outages, the FCC found that automated messages and texts notifying customers of their eligibility for low-cost services due to age, low income, or disability, fell outside of any TCPA prohibitions. The FCC did not make clear why these calls did not qualify as telemarketing but instead were deemed to be closely related to the provision of electric service. Further confusing the issue, the FCC stated that while notifying customers of their eligibility to participate in low-cost services does not run afoul of the TCPA, “soliciting voluntary participation in programs such as, for example, energy saving programs to reduce monthly energy bills or donations to subsidize other energy consumers” does. Despite the lack of clarity in its ruling, it appears that programs geared towards individual customers or distinct groups of customers (age, income, disability) are considered by the FCC to be closely related while more general based programs available to all customers (energy saving and charitable giving) will tend to be classified as marketing communications.
Additionally, the FCC added some uncertainty about robocalls and automated texts regarding debt collection on past-due accounts. While the FCC clearly stated that notification of payment delinquencies and potential termination of service for active accounts fell outside of TCPA prohibitions, it rested on its prior precedent regarding communications concerning post-termination collection communications. Generally speaking, that prior precedent indicates such post-termination communications are permissible when the customer provides a cell phone number to the utility in connection with a utility service account.
Though this ruling is a small victory for electric utilities in that it provides some clarity for utilities with respect to TCPA liability for certain specific types of communications with customers, at its substantive core, the ruling provides little, if any, protection that was not already provided by prior FCC and judicial precedent. Therefore, it is unlikely that the ruling will have a profound impact on the TCPA compliance procedures employed by utilities prior to this ruling.