Late last week, the Federal Communications Commission (FCC) issued a long-anticipated declaratory order, ruling that utility companies may make robocalls and send automated texts to their customers concerning matters closely related to the utility service, without violating the Telephone Consumer Protection Act (TCPA). The FCC’s August 4, 2016 order reasoned that such communications, including those relating to service outages and warnings about potential service interruptions due to severe weather conditions, do not violate the TCPA because utility customers are deemed to have provided consent to receive these calls and texts when they gave their phone numbers to the utility company. 

In ruling on a separate petition, the FCC also afforded school callers relief from the TCPA, concluding that schools may make autodialed calls and send automated texts to student family wireless phones without consent for emergencies including weather closures, fire, health risks, threats and unexcused absences. The order granted school callers additional relief for calls and messages that, while not emergencies, are closely related to the school’s mission, such as notification of an upcoming teacher conference or general school activity, based on the presumption that such calls are made with the prior express consent of the called party when a telephone number has been provided to an educational institution by the call recipient. 
 
The TCPA was enacted in 1991 to address certain calling practices that are alleged to invade consumer privacy. Generally, the TCPA prohibits: (1) making telemarketing calls using an artificial or prerecorded voice to residential telephones without prior express consent; and (2) making any non-emergency call using an automatic telephone dialing system (autodialer) or an artificial or prerecorded voice to a wireless telephone number without prior express consent. If the call includes advertising or constitutes telemarketing, consent must be in writing. If an autodialed or prerecorded call to a wireless number is not for such purposes, consent may be oral or written. The FCC has explained that consent must come from the number’s subscriber.

In its August 4 order, the FCC ruled that energy utility companies may make autodialed calls and send automated texts to their customers concerning matters closely related to the utility service, as long as the customer has provided his or her phone number to the utility and has not given do-not-call instructions. The protected communications include those 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 due to certain qualifiers such as age, low income or disability; and 
• Provide information about potential brown-outs due to heavy energy usage. 

According to the FCC, “consumers who provide their wireless telephone number to a utility company when they initially sign up to receive utility service, subsequently supply the wireless telephone number, or later update their contact information, have given prior express consent to be contacted by their utility company at that number with messages that are closely related to the utility service so long as the consumer has not provided instructions to the contrary.” The FCC noted further that it was declining to extend the TCPA’s emergency purpose exception to all categories of utility calls, including specifically calls made for post-service termination debt collection. 

The FCC ruling was issued in response to a petition submitted by Edison Electric Institute and the American Gas Association requesting that the commission confirm whether providing a wireless telephone number to an energy utility company constitutes “prior express consent.” The petitioners, supported by a number of commenters, noted that the availability of reliable electric and gas service to the public is critically important, and that interruption of these services creates enormous inconvenience and poses a risk to public safety. The FCC agreed, holding that “speeding the dissemination of information regarding service interruptions or other potential public safety hazards can be critically important.” The FCC recognized further that “[s]ervice outages and interruptions in the supply of water, gas or electricity could in many instances pose significant risks to public health and safety, and the use of prerecorded message calls could speed the dissemination of information regarding service interruptions or other potentially hazardous conditions to the public.”

While the FCC’s order provides much needed and long-awaited guidance for utilities, it underscores the point that energy utilities remain responsible for demonstrating that their customers provided prior express consent and for maintaining records that show the utilities obtained the necessary prior express consent. In this regard, the FCC stated that it “strongly encourages utility companies, and all robocallers, 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.” According to the FCC, “this additional safeguard will also help ensure that certain ‘vulnerable’ wireless cell phone customers with limited minutes are afforded opportunities at that time to limit calls to their devices if needed.”

Finally, with respect to calls regarding payment of utility bills, the FCC concluded that customers who provided a wireless telephone number are deemed to have given prior express consent to be contacted by their utility company to warn about the likelihood that failure to make payment will result in a curtailment of service. After a customer’s utility service has been terminated, however, routine debt collection calls by utilities to those customers will continue to be governed by existing TCPA rules.

In addition to the guidance the FCC’s order provides to utilities and schools, this ruling also demonstrates the value of submitting petitions and comments to the FCC to gain clarity and ideally to mitigate potential TCPA compliance risk.