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FCC Grants Significant TCPA Relief to Energy Utilities and Schools

On August 4, 2016, the Federal Communications Commission (FCC or Commission) released a Declaratory Ruling granting in part two separate petitions that were filed last year - one by the Edison Electric Institute (EEI) and American Gas Association (AGA), and another by Blackboard, Inc. (Blackboard) - regarding the treatment of certain types of non-telemarketing, informational "robocalls" (i.e., calls and texts placed using an autodialer or a prerecorded or artificial voice) under the Telephone Consumer Protection Act of 1991 (TCPA). The Declaratory Ruling confirms that:  (1) utility companies are deemed to have the requisite "prior express consent" to place robocalls regarding matters "closely related to the utility service" to numbers that customers have provided to the utilities; (2) schools can lawfully place certain types of robocalls to members of their school communities pursuant to the "emergency purpose" exception in the TCPA; and (3) schools are deemed to have the requisite "prior express consent" to place other types of robocalls that are not emergencies, but are "closely related to the school's mission" to numbers that recipients have provided to the schools. While the Declaratory Ruling is limited in scope, it adds important precedent to this highly regulated and frequently litigated area.

The TCPA regulates telemarketing calls, robocalls, and unsolicited fax advertisements. Among other things, the TCPA generally prohibits robocalls to residential and mobile numbers unless such calls are made for an "emergency purpose" or with "prior express consent." The "emergency purpose" exception applies to calls and texts relating to "any situation affecting the health and safety of consumers," but has been narrowly construed. If a business cannot take advantage of the "emergency purpose" exception, then it must obtain consent before placing robocalls. The consent requirements differ depending on whether the robocall is advertising/telemarketing or non-telemarketing/informational in nature, and the only types of robocalls that do not require any consent are informational calls to residential lines. Robocalls to wireless numbers require consent, even if they are informational in nature, which was the impetus for the EEI/AGA and Blackboard petitions.  

The types of robocalls from energy utilities that the FCC deems to fall within the scope of the Declaratory Ruling include: calls that warn about planned or unplanned service outages; calls that provide updates about service outages or service restoration; calls that request confirmation of service restoration or information about lack of service; calls that provide notification of meter work, tree trimming, or other field work; calls that warn about payment or other problems that threaten service curtailment (but not post-service termination debt collection calls); calls that notify consumers that they may be eligible for subsidized or low-cost services due to certain qualifiers; and calls that provide information about potential brown-outs due to heavy energy use. Notably, the FCC granted the relief sought by EEI and AGA based on consent, and not the TCPA's "emergency purpose" exception. Thus, utilities remain responsible for demonstrating that their customers consented (by providing a number to the utility) and for keeping records of consent.

With regard to schools, the FCC determined that they can lawfully place robocalls concerning weather closures, incidents of threats and/or imminent danger due to fires, dangerous persons, or health risks, and unexcused absences pursuant to the "emergency purpose" exception in the TCPA. Other types of robocalls that are not emergencies but are "closely related to the school's mission," such as notifications of upcoming teacher conferences and general school activities, are deemed to be made with "prior express consent" when the recipients have provided their numbers to the school. In those cases, schools must be able to demonstrate that the recipients consented (by providing a number to the school). 

While the Declaratory Ruling covers many types of calls and texts that utilities and schools place, not all types are covered, so affected businesses must carefully assess their communications practices. In addition, the FCC confirmed that utilities and schools are subject to other TCPA requirements when placing robocalls, such as opt-out requirements and ceasing robocalls to numbers that have been reassigned to new subscribers after one call made in error. These and other requirements were addressed in the Commission's 2015 TCPA Omnibus Declaratory Ruling and Order.  
TCPA litigation is on the rise, and the FCC has adopted stringent requirements for automated calls and texts, so all businesses must ensure that they understand their obligations when using these technologies to communicate with current and former customers, employees, and others. Keller and Heckman LLP provides practical guidance to for-profit and non-profit businesses as they navigate the complex TCPA landscape, counseling them on compliance with TCPA requirements, and representing them before the FCC and in legal challenges involving violations.