Energy Utilities Seek Clarification That Customer Provided Phone Numbers Satisfy Prior Express Consent Requirement Under TCPA


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March 2015 TCPA Compliance Monitoring Report

Over the past year, several industry groups have filed petitions for declaratory ruling with the Federal Communications Commission (“FCC”) seeking clarification that a customer providing a company with his or her telephone number constitutes “prior express consent” under the Telephone Consumer Protection Act (“TCPA”). Included in those industries are banks, healthcare providers and, now, energy utility companies.

On February 12, the Edison Electric Institute (“EEI”) and the American Gas Association (“AGA”) filed a Petitionwith the FCC seeking clarification that by giving a gas or electric utility their phone number, customers have consented to receive non-telemarketing, informational calls at that number.  EEI and AGA further argue that such consent satisfies the TCPA’s requirement that the party initiating a call or message to a cell phone using an automatic telephone dialing system or an artificial or prerecorded voice obtain the prior express consent of the recipient.

In support of the petition, EEI and AGA argue energy utilities must have the ability to timely contact their customers, and they claim that using autodialers and prerecorded messages allows them to accomplish this task more efficiently.  EEI and AGA also say the TCPA was never intended to prevent the kind of informational calls EEI and AGA discuss in the petition, including calls to customers about, among other things, outages, repair work, service cancelation, and service restoration.

On February 24, the Consumer and Governmental Affairs Bureau released a Public Notice seeking comment on the issues raised in EEI and AGA’s petition. The public notice established a comment deadline of March 26, 2015 and a reply comment deadline of April 10, 2015.

Other TCPA News and Notes:

Three more petitioners filed ‘me too’ petitions seeking a similar retroactive waiver granted by the Commission in its Anda Order last October. The Anda Order provided a temporary waiver of the Commission’s opt-out notice requirements for solicited fax ads, and it established a deadline of April 30, 2015 for similarly situated parties to file petitions seeking similar treatment.

The FCC’s Consumer and Governmental Affairs Bureau issued a Public Notice seeking comment on these additional petitions on February 27. Comments are due on March 13, 2015, and reply comments are due on March 20, 2015.

If you would like help filing comments on any of the public notices released by the FCC or you would like assistance filing a retroactive waiver of the FCC’s opt-out notice requirements for solicited fax ads before the April 30 deadline, please contact Jane Wagner: – 703-714-1321 – Linda McReynolds: – 703-714-1318 – or Robert Jackson: – 703-714-1316.

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