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[.]”