FCC Provides Guidance to Public Utilities on Autodialing and Prerecorded Calls

The Telephone Consumer Protection Act (TCPA), which regulates certain kinds of autodialing and prerecorded phone calls and texts, has long created compliance headaches and risks for businesses across many industries. For public utilities, however, there is now some reprieve in connection with service-related calls and texts.

On August 4, 2016, the Federal Communications Commission (FCC) held in a Declaratory Ruling that consumers who provide a wireless telephone number to their utility “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 provided examples of the types of calls it considers to be “closely related to the utility service,” including 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 they may be eligible for subsidized or low-cost services due to certain qualifiers such as, e.g., age, low income or disability;
• provide information about potential brown-outs due to heavy energy usage; and
• warn about the likelihood that failure to make payment will result in service curtailment.

According to the FCC, these types of service-related calls do not constitute “telemarketing” as it is defined in the TCPA, and a consumer’s provision of a telephone number to the public utility – whether at service initiation or any other time prior to the call being placed – constitutes sufficient consent to comply with the TCPA.

This ruling is good news for public utilities, which have often had to carefully balance their TCPA obligations with the need to provide timely service-related information to consumers. Nevertheless, the FCC warns the ruling is not “a blank exemption from the TCPA for utility companies.” The Commission reiterated that a consumer can revoke consent “in any reasonable manner that clearly expresses a desire not to receive further messages,” and that the revocation of consent must be respected even in connection with calls “closely related to the utility service.” Moreover, the FCC cautions against over relying on its ruling, and “strongly encourage[s]” utilities “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 rated to the service purchased by the customer.”

This ruling provides an excellent opportunity for public utility companies to review and update their customer outreach practices. We recommend taking the following steps:

• Ensure a TCPA compliance strategy is in place;
• Review the current treatment of calls “closely related to the utility service” and evaluate whether current practices can be altered in light of the FCC’s Declaratory Ruling;
• Review current customer messaging provided at service initiation and contact information updates to determine whether the FCC’s “strongly encourage[d]” disclosures are included; and
• Ensure that customer service and other relevant employees and agents are provided appropriate materials and are properly trained on the revised compliance strategy.

Please contact your Dinsmore attorney to discuss your company’s customer outreach strategies.