This month, the Federal Communications Commission (the “FCC” or “Commission”) issued a Declaratory Ruling clarifying what type of Telephone Consumer Protection Act (“TCPA”) consent is required for certain telephone calls and text messages made/delivered by utility companies.

When can utility companies and their affiliates make autodialed calls?

TCPA Consent Requirements Generally

Generally, companies that make or initiate pre-recorded and/or autodialed telemarketing calls to consumers must first obtain each such consumer’s “prior express written consent” for the subject calls.

In addition, the TCPA and its implementing regulations forbid making any pre-recorded and/or autodialed informational calls to a wireless telephone number without the consumer’s “prior express consent.”

Edison’s and AGA’s Petition

Last February, Edison Electric Institute (“Edison”) and American Gas Association (“AGA”) filed a Petition for Expedited Declaratory Ruling with the FCC, requesting clarification from the Commission that a utilities customer provides his or her prior express consent to receive informational telephone calls and text messages related to the customer’s utility services when the customer provides his or her wireless telephone number to the utility company.

In their Petition, Edison and AGA cited a variety of informational calls and text messages that utility companies make or deliver to their customers, including:

  • Notifications about planned or unplanned service outages or required on-premises work;
  • Updates about outages or service restoration;
  • Verifications of eligibility for special rates or services; and
  • Warnings about overdue payments.

FCC Issues Ruling on TCPA Consent Required from Utilities Customers

On August 4, 2016, the Commission issued a Declaratory Ruling in response to Edison’s and AGA’s Petition. Although the FCC declined to exempt all utilities-related calls from TCPA consent requirements, the Declaratory Ruling held that utility companies and their affiliates may make autodialed/pre-recorded calls or deliver text messages to customers concerning matters “closely related” to the utility service, finding that such customers provide their prior express consent to receive such calls when they give their phone numbers to utility companies.

The FCC further clarified that “closely related” calls and text messages include those notifying utility customers of extreme weather conditions, planned/unplanned service outages, on-premises field work, potential “brown-outs” and eligibility for subsidized/low-cost services due to certain qualifiers (e.g., age, low income or disability).

The Commission made clear that the Declaratory Ruling does not extend to calls and text messages that solicit voluntary participation in programs (such as those promoting energy savings or soliciting donations) or to post-service termination debt collection.

Utility Companies and Related Marketers: Proceed with Caution

The Commission’s Declaratory Ruling does not exempt all utility-related calls and text messages from TCPA consent requirements. Given the serious potential for TCPA exposure in today’s regulatory climate, utility companies and their marketing affiliates should speak with experienced telemarketing counsel before using modern technology to make phone calls and/or deliver text messages to utility customers or other consumers.