TCPA Clarification FAQ for Utilities

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TCPA Clarification FAQ for Utilities This FAQ is not intended to be legal advice. Please consult your legal counsel to understand your obligations under the TCPA.

What is TCPA and why do utilities need to know about it? The Telephone Consumer Protection Act (TCPA) was created in 1991 and is administered by the Federal Communications Commission (FCC). The TCPA Rules, among other things, generally prohibit calls or text messages made using automatic dialing systems or a prerecorded voice to any telephone number assigned to a mobile phone without prior express consent from the called party, unless the call is for “emergency purposes.” Under the TCPA, consumers can sue for violations with penalties per violation (per call) of up to $500. These can be tripled to $1,500 if the violations are done willfully and knowingly.

What was the most recent FCC update to TCPA rules, and when do they go into effect? On August 4, 2016, the FCC released a Declaratory Ruling (“Ruling”) to address a 2015 petition filed by Edison Electric Institute and American Gas Association related to utility messages (CG Docket No. 02278). The ruling went into effect immediately.

What are key changes to TCPA rules affecting utilities? The ruling clarifies “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”. (See Ruling ¶ 1.)

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 TCPA Clarification FAQ for Utilities

What are examples of purposes “closely related” to the utility service? The “closely related” language is new for utilities. The Ruling indicates the types of calls which are closely related to the utility service, include: warnings about planned or unplanned service outage; providing updates about service outages or service restoration; asking for confirmation of service restoration or information about lack of service; providing notification of meter work, tree trimming or other field work; warnings about payment or other problems that threaten service curtailment, notifying consumers they may be eligible for subsidized or low-cost services; and, providing information about potential brown-outs due to heavy energy usage; but not post-service termination debt collection calls;. The FCC made clear after a customer’s utility service has been terminated, routine debt collection calls will continue to be governed by existing rules and prior express consent is required beyond just provision of the phone number.

Has the definition of “emergency purposes” changed? The TCPA Rules define “emergency purposes” as “calls made necessary in any situation affecting the health and safety of consumers” and has not changed. In the Ruling, the FCC indicates there is a “wide range of potential risks to public health and safety presented by interruption of utility service due to extreme weather conditions that can lead to unexpected service outages, or even service outages necessitated by repair and maintenance work.” (See Ruling ¶ 28.) Whether a call meets the definition of emergency purposes may depend upon the facts of the situation.

Does a utility need to continue getting express consent before calling or texting a mobile phone number for non-emergency purposes? Express consent is still needed, but express consent is now considered gathered simply by the act of the customer providing the number to the utility (as long as it is for purposes closely related to the utility service). For purposes not closely related to the utility service or not explicitly identified at the time the number is collected, additional express consent is still needed. The FCC strongly encourages utility companies to inform customers by providing a wireless number to the company, the customer is consenting to receive automated and/or text messages closely related to the service purchased by the customer. This action also allows customers with limited minutes or texts the opportunity to make appropriate decisions to limit calls/texts to their devices if they choose.

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 TCPA Clarification FAQ for Utilities

Do utilities need to continue providing recipients with the ability to opt-out of being contacted? Utilities must continue to honor a request to opt-out of being contacted. Customers may opt-out at any time and using any reasonable method. TCPA compliance is consistent with general best practices for customer utility communications, including providing customers with ongoing opportunities to revoke consent (in general or for specific types of communications) and to identify their preferred, and therefore the most effective, communications channel (ideally by purpose, such as outage, maintenance notification, and so on). For example, if a utility customer texts an opt out message or informs a customer service representative to opt out, the number must be immediately blocked in the utility’s notification system and that preference must be kept on file for future reference. It is crucial utilities employees on the front lines understand these policies and the importance of properly implementing them. It is also possible a customer would revoke consent for a specific method (e.g., SMS text message) and/or for a specific purpose (e.g., maintenance events). Using embedded and automated features included in a broadcast communications tool are a best practice to more easily record, manage and act on the called party’s opt-out and preferences.

What are utility obligations if a phone number is reassigned? Consent obtained from the original subscriber of a mobile number does not mean there is prior express consent when that number has been reassigned to another subscriber. Consent must come from the called party –the person assigned to the number dialed and billed for the call or the non-subscriber customary user of a number in a family or business calling plan. When the called party changes, the utility is responsible for taking steps to not contact the reassigned numbers. The FCC ruling encourages utilities to regularly update their calling lists to ensure emergency-purpose calls do in fact reach the intended recipient. Services are available for tracking numbers that are disconnected and/or ported. Some notification providers integrate that data into their services to proactively identify and block such numbers.

For additional information regarding how to create solutions that proactively communicate to your customers, contact the West utilities team at 614.442.1215, option #2.

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