September 13, 2016
TCPA Updates — Communicating with Low-Income Customers
August 2016 FCC Ruling — Update for Utility Communications
The FCC issued a declaratory ruling on August 4, 2016 that provides some relief from the strictest portions of the TCPA for certain types of utility messages. In particular, the ruling provides permission for utilities to send automated calls and text messages to customer contacts they already have. Utilities are still required to provide proof of consent in case of disputes, but they are considered to have “prior express consent,” the type of consent required by the TCPA:
- If a customer provides a wireless phone number when signing up for service OR subsequently provides a wireless phone number OR updates contact information
- If the utility is sending messages “closely related to the utility service”
- As long as the customer has not provided “instructions to the contrary,” such as making a request for the utility to stop calling (FCC 16-88, p. 13, para. 29)
The FCC ruling includes the following list of messages “closely related” to the service utility companies provide:
- Notifications about planned or unplanned outages
- Updates about outages or service restoration
- Requests for confirmation of restoration or information about lack of service
- Notifications about meter work, tree trimming, or field work that directly affects the customer’s service
- Notifications that customers may be eligible for subsidized or low-cost services
- Notifications about potential brown-outs due to heavy energy usage
- Warnings that failure to make payment will result in service curtailment (not collection calls after a disconnect)
Best Practice Recommendations
In the August 2016 ruling, the FCC also encouraged some particular practices related to calling and sending text messages to consumers. One recommendation is to “disclose the full range of all potential calls and messages” when requesting consent from consumers (FCC 16-88 p. 12, para. 25). The FCC mentions this as a way to ensure that all message types are covered by the consumer’s consent, and on a more basic level it’s a good way to be sure that you and your customers have the same understanding.
Another recommendation is to let customers know that you will send automated messages to a wireless telephone number they are providing. For example, the message could say, “We will send automated phone calls or text messages to this phone number to give you information about outages, work orders, bills, and payments related to your account with us.” According to the FCC, “this additional safeguard will also help ensure that certain ‘vulnerable’ wireless cell phone customers with limited minutes are afforded opportunities at that time to limit calls to their devices if needed” (FCC 16-88 p. 14, para. 31).
Communicating with Low-Income Customers
The FCC mentioned a particular need for low-income households to receive messages related to service interruptions: “There is evidence in the record that low-income households — especially those in urban and minority communities more reliant upon wireless phones as their primary source of communications — are particularly vulnerable to service interruptions, making it even more imperative that they receive appropriate notice, especially before, during and after emergency situations” (FCC 16-88 p. 14, para. 30).
Calling or sending text messages to low-income customers can be the best way to reach them, as some have only limited access to the internet. According to Pew research, “13% of Americans with an annual household income of less than $30,000 per year are smartphone-dependent,” which means that they own a smartphone but do not have any other form of high-speed internet access at home and have limited options for going online other than their phone. In addition, 9% of those with a high school diploma or less are “smartphone-dependent,” compared to just 1% of Americans from households with an annual income of $75,000 or more (Pew).
While it is important to communicate service-related information to low-income customers, utilities also need to be aware of the number of messages they send. The National Consumer Law Center wrote an ex parte filing related to the AGA/EEI petition to urge that certain “vulnerable” wireless cell phone users who have limited minutes be protected from excessive calls (FCC 16-88, p. 7, para. 14). Consumers who receive support from the federal Lifeline program are among these “vulnerable” cell phone users.
Consumers who are eligible for the Lifeline program “may receive a discount on either a wireline or wireless service, but not both” (FCC.gov). This may increase the likelihood of low-income consumers opting to have a wireless phone as their only form of telephone service. The least expensive mobile phone service plans offered by Lifeline providers charge for text messages individually, often providing a limited number of texts per month. Other plans provide a limited number of voice minutes but an unlimited number of texts per month (USAC).
In either case, consumers who participate in the Lifeline program are highly motivated to limit the number of calls or text messages they receive per month. Utilities who make it easy for their customers to provide communication preferences can help participants in the Lifeline program and other low-income customers avoid overage charges.
The latest FCC ruling provides permission for utilities to send automated calls and text messages to customer contacts they already have. Offering preference management with individual options for different message types can help improve the effectiveness of these messages. Furthermore, the latest FCC ruling indicates that utility companies still bear the burden of proof for demonstrating consent related to the TCPA. Preference management solutions can help track consent and provide an easy way for consumers to opt in or out of specific types of messages.
Disclaimer: This blog post is for informational purposes only and not for providing legal advice. You should contact your attorney to obtain advice with respect to any particular situation, issue, or problem.
Federal Communications Commission, FCC 16-88, Declaratory Ruling on CG Docket No. 02-278, accessed on 9/2/2016 from http://transition.fcc.gov/Daily_Releases/Daily_Business/2016/db0804/FCC-16-88A1.pdf.
Federal Communications Commission, Lifeline Program for Low-Income Consumers, accessed on 9/2/2016 from https://www.fcc.gov/general/lifeline-program-low-income-consumers.
Pew Research, U.S. Smartphone Use in 2015, accessed on 9/2/2016 from http://www.pewinternet.org/2015/04/01/chapter-one-a-portrait-of-smartphone-ownership/.
Universal Service Administrative Company (USAC), Lifeline Support, accessed on 9/2/2016 from http://www.lifelinesupport.org/.