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ICC Staff: Proposed Illinois Regulations May Result In Retail Suppliers Running Afoul of FCC Rules

December 20, 2016

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Copyright 2010-16 EnergyChoiceMatters.com
Reporting by Paul Ring • ring@energychoicematters.com

Proposed rules contained in an Illinois Commerce Commission first notice order requiring retail electric suppliers to call customers to inform them of contract renewals may result in suppliers running afoul of FCC rules, ICC Staff said in comments on the first notice order

As previously reported (see story), the first notice order requires that, in addition to the written notice required per Section 412.170(e), unless the customer has no phone number on record with the retail electric supplier (RES), the RES shall call the customer at least 30 days but no more than 60 days prior to the end of the initial contract term. The first notice order provides that the call may be live or automated and it shall provide the information required in Subsections (b)(2)-(5) of the proposed rules in addition to the impending end of the initial contract term. A second call shall be required within 14 days of the first call if the first call does not reach a person or an answering machine.

"Aspects of this provision may have certain unintended consequences which might be best avoided. Specifically, to the extent that the rule permits automated calling, it may result in RESs running afoul of Federal Communications Commission (FCC) rules promulgated under the authority of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. §227; see also 47 C.F.R. §64.1200," ICC Staff said

ICC Staff noted that, "The FCC’s rules prohibit 'initiat[ing] any telephone call (other than a call made for emergency purposes or ... made with the prior express consent of the called party) using automatic telephone dialing system or an artificial or prerecorded voice ... [t]o any telephone number assigned to a ... cellular telephone service ... or any service for which the called party is charged for the call.' 47 CFR §64.1200(a)(1)(iii)."

"The FCC’s rules further prohibit '[i]nitiat[ing], or caus[ing] to be initiated, any telephone call that includes or introduces an advertisement or constitutes telemarketing, using an automatic telephone dialing system or an artificial or prerecorded voice, to any of the lines or telephone numbers described in paragraph[] (a)(1) ... (iii) of this section, other than a call made with the prior express written consent of the called party[.]' 47 CFR §64.1200(a)(2)," ICC Staff noted

"The FCC’s rules likewise prohibit '[i]nitiat[ing] any telephone call to any residential line using an artificial or prerecorded voice to deliver a message without the prior express written consent of the called party, unless the call ... [i]s not made for a commercial purpose ... [or] [i]s made for a commercial purpose but does not include or introduce an advertisement or constitute telemarketing[.]' 47 CFR §64.1200(a)(3)(ii-iii)," ICC Staff said

"Under the FCC’s rules, 'telemarketing' is defined as 'the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services[.]' 47 CFR §64.1200(f)(7). 'Prior express written consent' is defined as 'an agreement, in writing, bearing the signature of the person called that clearly authorizes the seller to deliver or cause to be delivered to the person called advertisements or telemarketing messages using an automatic telephone dialing system or an artificial or prerecorded voice, and the telephone number to which the signatory authorizes such advertisements or telemarketing messages to be delivered.' 47 CFR §64.1200(f)(8). The written agreement pursuant to which 'prior express written consent' is given must contain certain disclosures. 47 CFR §64.1200(f)(8)(i)(A-B). The terms 'commercial purpose' and 'advertisement' are not defined," ICC Staff said

"Accordingly, if the phone number of record that a RES maintains for a given customer is a wireless number (as is increasingly likely to be the case as customers 'cut the cord'), a RES that seeks to call customers using an autodialer must first make certain it has 'prior express written consent' within the meaning of 47 CFR §64.1200(f)(8). Such consent must take the form of a signed written agreement specifically consenting to such calls. Id. It seems likely to Staff that many, if not most, RES contracts currently do not contain such provisions, even assuming that such consent can take the form of a provision in a contract, rather than a free-standing document, about which the Staff is not certain. Accordingly, it seems likely that many, if not most, RES will either be required to eschew the use of autodialers (which may not be feasible), or violate the TCPA," ICC Staff said

Staff noted that, "Violations of the TCPA are subject to significant penalties. A violator may be subject to actions by state Attorneys General, or private actions, in either case seeking recovery of damages up to $500 per violation (a liquidated amount), as well as injunctions prohibiting further violations."

"Accordingly, any rule which might require a RES to violate the TCPA should be viewed circumspectly," ICC Staff said

Docket No. 15-0512

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