Disclaimer: The information provided here is merely informational and is not intended to be legal advice. Please consult your legal counsel for clarifications on your obligations under the TCPA.
Background: The Telephone Consumer Protection Act
The Telephone Consumer Protection Act (TCPA) of 1991 was enacted by Congress to address consumer concerns over the growing pattern of telephone marketing calls, especially automated calls ("robocalls"). The regulation applies both to telephone common carriers and potential marketers. The rules adopted for the act include the requirement that marketers keep "Do Not Call" lists.
In 2003, the FCC and the FTC established the national Do-Not-Call registry. This applies to all telemarketers other than certain nonprofit organizations.
in 2012, the FCC revised the TCPA rules to require that marketers obtain express written consent from consumers before calling them. Additionally, these revised rules disallow using an established or previous business relationship as presumed consent for marketing calls, and require that calls provide a mechanism to opt out of robocalls to prevent future marketing calls. Since its original enaction, the TCPA has been expanded to include SMS/text messaging to cellphones as well as actual telephone calls.
Consumers can sue a caller or message sender for TCPA violations, with fines ranging from $500 to $1500 per call/message, depending on the willfulness of the caller/message sender ignoring lack of consent.
The 2016 FCC Ruling on Consent and Utilities Customers
An FCC ruling in 2016 clarified the consent rules to include exceptions for utilities, for contact to wireless/cellphone numbers related to specifically to utility service. While the FCC declined to make all utilities-related calls exempt from TCP consent requirements, they decided that:
"... utility companies may make robocalls and send automated texts to their customers concerning matters closely related to the utility service, such as a service outage or warning about potential service interruptions due to severe weather conditions, because their customers provided consent to receive these calls and texts when they gave their phone numbers to the utility company." (FCC Declaratory Ruling 16-88, released August 4, 2016.)
The FCC also extended this decision to wireless/cellphone calls and messages regarding billing or payment, such as warnings of potential termination due to non-payment, but only while the subscriber is a customer of the utility. (Consent to communication while a customer would not apply to debt collection calls after termination of service.)
In a way, this parallels the US CAN-SPAM law's exception for "transactional" email - that is, communication that does not act to sell or market products or services, but is information regarding a business transaction.
However, the FCC strongly encourages utilities to notify customers that providing their cellphone number to the utility will be considered express consent for such service-related communications.
What Does This Mean for Utilities Today?
The FTC decision does not exempt all communication from a utility from the TCPA consent rules. Nor does it apply to landline numbers, only to wireless/cellphone numbers. It does however allow utilities additional freedom to communicate with utility subscribers by automated call or text messaging for specific topics such as:
- Extreme weather warnings that may impact service
- Notification of outages or 'brownouts', planned or unplanned
- Notification of required on-site work such as meter or tree trimming work.
- Updates or verification requests regarding outages or service restoration
- Warnings regarding potential service termination due to non-payments.
- Verification of rate eligibility for time-of-use programs or subsidized/low-cost programs
Calls or text messages that simply promote participation in energy savings programs, or that solicit donations, are not exempt from the requirements around consent. Presumed consent would not cover those - only express written consent would. Debt collection calls after a customer is terminated would not be covered by the presumed consent exceptions, and would fall under existing TCPA guidelines requiring explicit consent. Additionally, the exemption only applies to the cellphone number provided by the subscriber.
If your company is going to communicate with your subscribers via robocall or text message for purposes like those listed above, you should be making it clear to those subscribers that when they supply their wireless/cellphone number to you, that will be read as consent for certain allowed communications to that wireless/cellphone number. Inform customers clearly of this assumption of consent both on service initiation and on contact information changes. You should provide a method for subscribers to opt out of even these otherwise allowed messages - to rescind their implied consent, in other words.
You must also maintain records of customers who have provided consent - either by providing their number after seeing the implied consent warning, or who have provided explicit consent. The burden of record keeping falls upon the utility.
Provide subscribers with a way to opt out of calls or text messages, and quickly respond to such requests by blocking future contact to that number. Keep records of such requests to ensure no future contact is taken unless consent is given again. Automated features allowing a subscriber to respond to a call or text message directly to opt out are advisable.
If you plan to call or message subscribers about topics other than those listed above, including marketing-related topics, or if you plan to contact landline numbers, the implied consent does not apply, and you will need to obtain explicit written consent to contact those numbers.
Keep in mind that cellphone numbers can be recycled and reassigned to new subscribers. Work with subscribers to ensure that your records of their numbers are up to date, and provide a way for subscribers to update their information. Subscriber consent to contact a cellphone number does not apply to a later owner of that number, and it is the utility's responsibility to take steps not to contact reassigned numbers. Utilities can make only one call or message to a reassigned number, (a "safe harbor" call) before additional communication is considered a violation. Providing a method for subscribers to opt out of calls or text messages via response to a call or a text message can help a number's new owner opt out of repeat messages meant for a previous owner of that number.