Edison Electric Institute (EEI), an association that represents all U.S. investor-owned electric companies, petitioned the Federal Communications Commission (FCC) to permit calls and texts under the Telephone Consumer Protection Act (TCPA) without prior express consent for “demand response” communications. A prior FCC ruling clarified the FCC’s policies towards the types of calls and texts from utilities that require prior express consent; EEI now urges the FCC to provide additional guidance on allowable “demand response” calls and texts. “Demand response” refers to non-marketing communications related to “temporary, strategic adjustments to electricity usage during peak demand periods.” EEI has asked the FCC to “recognize how essential demand response programs are to ensuring customer safety and to managing increasing demand for electricity more effectively.” EEI seeks FCC clarification on whether such calls and texts are permissible without prior express consent from customers so that utilities can save customers money and prevent outages.
Violations of the TCPA could result in fines and lawsuits against utilities. Thus, in 2016, the FCC clarified that when a customer provides a telephone number to a utility, such provision constitutes prior express consent for certain communications “closely related” to the utility service. EEI is asking that the FCC’s ruling be expanded to include non-telemarketing, information demand response calls, and texts. EEI’s petition states, “Demand response programs target short-term, intentional modification of electricity usage by end-user customers during peak times or in response to market prices. They help keep the electricity grid stable and efficient and can save customers money.” EEI further states that customer survey data “indicates widespread satisfaction among participants in demand response programs utilizing calls or texts, demonstrating positive impacts on customer experience with low opt-out rates.” EEI hopes that the FCC can clarify the language regarding the applicability of the utility customer presumption of consent and allow utilities to engage customers in these essential demand and response programs.