In a recent Order, the FCC clarified the scope of TCPA relief applicable to utility companies, confirming that “prior express consent” may be presumed for certain calls that the FCC determined previously are “closely related” to a customer’s utility service, regardless of whether those calls are placed to wireless numbers or landline residential telephone numbers. The clarification was a welcome relief for utilities in light of new restrictions placed on the number of artificial and prerecorded voice calls to residential numbers that a caller may place within a specified time period in the absence of “prior express consent” (see our memo July 20, 2023 Effective Date Announced for TCPA Rule Amendments).

The clarification stemmed from a 2016 Order finding that consumers who provide a wireless telephone number to a utility when they initiate utility service, subsequently provide a wireless telephone number, or later update their contact information presumptively provide “prior express consent” to receive certain types of pre-recorded voice calls and texts from the utility that are “closely related” to their utility service. This narrowly tailored relief was intended to achieve an appropriate balance between the TCPA’s core consumer protections, and the desire to preserve the free flow of information that consumers want and expect to receive from their utility. However, because the informational calls covered by the 2016 Order were, at that time, fully exempt from the TCPA’s consent requirements when made to a landline residential telephone number, the FCC had no reason to consider whether the relief should be broadly applied to any number that a utility customer provides. This important distinction re-surfaced in 2020 when the FCC announced rule amendments that impose new restrictions on artificial or prerecorded informational calls to landline residential numbers.

Responding to a joint petition for reconsideration of the 2020 rule amendments filed by Edison Electric Institute (EEI), the FCC confirmed that the relief provided to utility companies in the 2016 Order applies equally to wireless and landline residential telephone numbers submitted by utility customers in connection with their service accounts. As a result, calls made by a utility company that are “closely related” to a customer’s utility service are not impacted by the newest restrictions on calls placed to residential landline phones because the called parties are presumed to have provided prior express consent to receive such calls when their telephone numbers were provided in connection with their service accounts. Utility calls impacted by the clarification include 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 that they may be eligible for subsidized or low cost services due to certain qualifiers, such as age, low income, or disability.
• Provide information about potential brown-outs due to heavy energy usage.
• Warn about the likelihood that failure to make a payment on an account will result in service curtailment.

Additionally, at the request of certain EEI members in Texas, the FCC confirmed that the provision of a telephone number to a customer’s retail electric service provider evidences “prior express consent” by the customer to be contacted at that number by an upstream utility that provides electricity to the customer’s retail electric service provider.