FCC Grants TCPA Relief to Utilities and Schools, but Compliance Challenges Remain

This article was originally published by Law 360 on September 2nd. Law 360 is available by subscription only.

On August 4, 2016, the Federal Communications 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 the other by Blackboard Inc. — relating to the treatment of certain “robocalls” from energy utilities and schools under the Telephone Consumer Protection Act of 1991 (TCPA). The declaratory ruling is limited in scope, but it adds important precedent to this highly regulated and frequently litigated area. It is also an important reminder for all businesses to ensure that they understand their obligations when using automated technologies to communicate with customers, employees and other third parties.

“Robocalls” are calls and texts placed using an automatic telephone dialing system (autodialer) or a prerecorded or artificial voice. The TCPA and the FCC’s implementing rules generally prohibit, among other things, robocalls to residential and mobile numbers unless such calls are made for an “emergency purpose” or with prior express consent. An “emergency purpose” is defined in the TCPA as “any situation affecting the health and safety of consumers,” but the scope of this exception is unclear. Absent a clear exemption, callers must obtain consent before placing most types of robocalls. The consent requirements differ depending on the nature of the call or text (i.e., telemarketing or non-commercial/ informational), and whether it is directed to a landline or mobile phone. Automated calls and texts to wireless numbers require consent, even if they are not commercial in nature, which was the impetus for the EEI/AGA and Blackboard petitions. With the proliferation of mobile devices, most businesses that want to use automated technologies to communicate with consumers need to obtain the requisite consent.

The declaratory ruling confirms that:

• Utility companies are deemed to have the requisite consent to place robocalls regarding matters “closely related to the utility service” to numbers their customers have provided in connection with the provision of service; and

• Schools can lawfully place certain types of robocalls to members of their communities pursuant to the TCPA “emergency purpose” exception, and they are deemed to have the requisite consent to place other types of robocalls that are “closely related to the school’s mission” to numbers provided by the recipients.

The types of robocalls from utilities that the FCC deems to fall within the scope of the declaratory ruling include calls and texts that: warn about planned or unplanned service outages; provide updates about service outages or service restoration; request confirmation of service restoration or information about lack of service; provide notification of meter work, tree trimming or other field work; warn about payment or other problems that threaten service curtailment (but not post-service termination debt collection calls); notify consumers that they might be eligible for subsidized or low-cost services due to certain qualifiers; and provide information about potential brownouts due to heavy energy use. Notably, the FCC granted the relief sought by EEI and AGA based on consent, and not the “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 such consent.

With regard to schools, the FCC determined that they can lawfully place robocalls concerning weather closures, incidents of threats and/or imminent danger to the schools 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 “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 called parties have provided their numbers to the school. In those cases, schools must be able to demonstrate that the parties consented (by providing a number to the school).

While the declaratory ruling covers many types of automated calls and texts that utilities and schools may place, not all types are covered, so affected businesses must carefully assess their practices. In addition, the FCC confirmed that utilities and schools must still comply with other TCPA requirements when placing robocalls, such as the opt-out requirements and ceasing robocalls to numbers that have been reassigned to new subscribers. These and other requirements were addressed in the commission’s 2015 TCPA omnibus declaratory ruling and order (the 2015 TCPA order).

Notably, in the 2015 TCPA order, the FCC confirmed that if a wireless number has been reassigned to a new subscriber, and a caller makes a “robocall” to such number without knowledge of the reassignment and with a reasonable belief that the call was made with consent, the caller must stop “robocalls” to that number after one call. According to the FCC, even if the one call does not provide actual knowledge of a number reassignment, the caller is still deemed to have constructive knowledge and must cease all further calls. This “one call” standard, which does not include any safe harbor, requires businesses to implement processes for determining whether numbers have been reassigned.

The FCC also confirmed in the 2015 TCPA order that consumers have a right to revoke their consent to receive “robocalls” at any time and “through any reasonable means.” Such revocation may be oral or written, and a caller cannot limit the manner in which revocation occurs. In light of the varied ways that consumers could revoke their consent, businesses need to ensure that all revocations of consent, however made, are recorded and honored.

A consolidated appeal of the 2015 TCPA order, including the “one call” number reassignment and consent revocation requirements, is pending before the U.S. Court of Appeals for the D.C. Circuit. In the meantime, plaintiffs continue to initiate TCPA complaints, including claims based on robocalls to numbers that were reassigned to subscribers who did not consent to receive them. Thus, it is important for all businesses — including utilities and schools — to remain mindful of their obligations under the TCPA when using automated technologies to communicate with consumers.