The Telephone Consumer Protection Act (“TCPA”) applies in many circumstances when companies use an automatic telephone dialing system (or “autodialer”) and/or pre-recorded messages to call consumers. In those situations where the TCPA does apply, the company cannot make the call unless it is an “emergency,” or unless the company has the prior express consent of the called party. The Federal Communications Commission (“FCC”) has the power to exempt certain categories of calls from the TCPA’s requirements.

The TCPA is vigorously enforced by the FCC and has also been the source of extensive class action litigation, including suits against utilities. Any violation of the TCPA can subject the calling company to statutory damages of $500 to $1,500 per call. Those statutory damages can quickly add up to millions or tens of millions of dollars in liability. Given this regulatory framework and potential liability, entities have petitioned the FCC for clarification regarding definitions in the TCPA and the application of the law to certain types of telephone communications.

The Edison Electric Institute and American Gas Association recently filed a petition with the FCC (the “EEI/AGA Petition”), seeking confirmation that “under the TCPA, providing a wireless telephone number to an energy utility constitutes ‘prior express consent’ to receive, at that number, non-telemarketing, informational calls related to the customer’s utility service, which are placed using an autodialer or an artificial or prerecorded voice.” The FCC has previously found that a consumer providing his or her telephone number signifies prior express consent to be called on that number for purposes that relate to the reason the number was provided. For example, providing a phone number on a credit application signifies prior express consent to be called on that number for purposes related to that credit account. The EEI/AGA sought clarification that such guidance applied in the context of providing telephone numbers to utility companies.

In a declaratory ruling released August 4, 2016, the FCC granted the EEI/AGA Petition. The FCC found that: “in the absence of facts supporting a contrary finding, prior to the termination of a customer’s utility service, a customer who provided a wireless telephone number when he or she initially signed up to receive utility service, subsequently supplied the wireless telephone number, or later updated his or her contact information, is deemed to have given prior express consent to be contacted by their utility company for calls that are closely related to the service[.]”

Calls that are “closely related to the service” include calls that:

  • Warn about planned or unplanned service outages
  • Provide updates about service outages or service restoration
  • Ask for confirmation of service restoration or information about lack of service
  • Provide notification of meter work, tree trimming, or other field work that directly affects the customer’s utility service
  • Notify consumers that they may be eligible for subsidized or low-cost services as a result of certain qualifiers, e.g., age, low income or disability
  • Provide information about potential brown-outs because of heavy energy usage, or
  • Inform customers that a debt is owed (pre-termination of service)The FCC reminded utilities that customers can still revoke their consent to be called via TCPA-covered means at any time, and in any reasonable way. Also, this ruling does not affect the previous FCC guidance regarding reassigned numbers; once a customer’s phone number has been reassigned to a new subscriber, the utility has one free call, and then is on constructive notice that the number has been reassigned and that the utility no longer has consent. Continuing to call reassigned phone numbers after that one free call is a violation of the TCPA.
  • Thus, a utility can make calls “closely related to the service” to numbers provided by the customer, prior to termination of service, assuming that consent has not been revoked and the number has not been reassigned.
  • Though providing a phone number is enough to signify prior express consent, the FCC went further and encouraged utility companies “to inform customers during the service initiation process or when updating contact information on the account as an additional safeguard that, by providing a wireless telephone number to them, the customer consents to receiving autodialed and prerecorded message calls at that number, to the extent such calls are closely related to the service purchased by the customer.”

While the FCC said that it was reaffirming prior TCPA rulings, which allowed companies to rely on providing a phone number for consent to call that number for debt-collect purposes (until consent is revoked), it also cited to a National Consumer Law Center brief that stated, “when a person signs up for utility service and is required to provide his or her phone number as a condition of receiving that service, it is unreasonable to assume that there was express consent to receive debt collection robocalls after the service has been disconnected.” As has been the case with declaratory rulings and other orders from the FCC clarifying the TCPA, the answer provided leads to more questions.