The FCC’s Consumer and Governmental Affairs Bureau adopted a Declaratory Ruling, adding demand response alerts to a list of utility communications deemed “closely related” to utility services. As such, the Bureau found that utilities have the necessary prior express consent to send demand response robotexts and robocalls to their customers who have provided their mobile numbers to the utility in connection with the utility’s provision of services. While not generally defined in the FCC’s rules, the FCC has been using the terms robotexts and robocalls to generally refer to calls and texts sent with automatic dialing equipment or pre-recorded/artificial voice calls that may be subject to various called party consent requirements.

Demand response alerts are calls and texts sent by utilities during critical times of peak demand intended to provide customers with information to avoid service disruptions and influence their behavior to reduce peak demand. The Bureau found that under the Telephone Consumer Protection Act (TCPA), these types of communications only require prior express consent, rather than prior express written consent, finding that these types of calls and messages are non-telemarketing communications that are “closely related” to utility service. The Bureau also stated that although such demand response alerts could lead to cost savings for customers, that does not change the primary purpose of the alert – to reduce usage and preserve capacity during peak demand periods.

This Declaratory Ruling was prompted by a Petition for Declaratory Ruling filed by Edison Electric Institute seeking clarification that utility providers have prior express consent under the TCPA for non-telemarking demand response calls and texts if the customer gives its phone number to the utility provider in receiving the service.

In 2016, the FCC clarified in a declaratory ruling that utility consumers consent to informational robocalls and robotexts that are “closely related” to the utility service when they provide their phone to the utility. The Commission also enumerated various types of communications from utility providers to customers that are considered “closely related” to the utility service including calls or texts that: (1) warn about planned or unplanned service outages; (2) provide updates about service outages or service restoration; (3) ask for confirmation of service restoration or information about lack of service; (4) provide notification of meter work; (5) provide notification of tree trimming or other field work that directly affects the customer’s utility service; (6) notify customers of their eligibility for subsidized or low-cost services due to certain qualifiers (e.g., age, low income or disability); or (7) provide information about potential brown-outs due to heavy energy usage.

The FCC noted that calls or texts regarding energy saving programs to reduce monthly energy bills or donations to subsidize other energy consumers are not “closely related” to the utility service. In 2022, the Commission further clarified that the 2016 declaratory ruling regarding prior express consent for calls and texts by the utility to wireless phone numbers provided by a customer, also applies to calls made by utilities to a residential telephone number provided by the utility customer.

This ruling adds “demand response alerts” to the laundry list of communications from utility providers that only require prior express consent (i.e., receiving the customer’s phone number from the customer is sufficient to send robotexts and robocalls regarding demand response alerts to that phone number) as long as such communications are non-telemarketing messages. Utilities will now have additional flexibility in conducting their demand response programs, leveraging calls and texts to better manage power grid stress, and engaging their customers in energy-saving behaviors.

Notably, this clarification does not apply to telemarketing messages, communications that include advertising or promotional content, which still require prior express written consent from the customer through a specific agreed opt-in to such communications. Note also that customers still have the right, at any time, to opt out of non-telemarketing calls and texts closely related to their utility service for which consent is otherwise required, including the demand response alerts that were the subject of the Bureau’s declaratory ruling.

Key Takeaways:

  • The FCC’s Consumer and Governmental Affairs Bureau has ruled that utilities have prior express consent to send non-telemarketing demand response robotexts and robocalls to customers who have provided their phone numbers to the utility for utility services. These alerts do not require prior express written consent.
  • While demand response alerts may result in cost savings for customers, their primary purpose is to influence energy usage and preserve capacity.
  • This ruling expands the list of utility non-telemarketing communications permitted with prior express consent. Customers maintain the right to opt out of such communications at any time, and telemarketing messages still require prior express written consent.