Telephone and Texting Compliance News: Regulatory Update — FCC Seeks Comment on Petitions Focused on Quiet Hour and Utility Robocalling Rules

Amid a surge in Telephone Consumer and Protection Act (TCPA) lawsuits, two groups filed Petitions for Declaratory Ruling before the Federal Communications Commission (FCC) this month, seeking clarity on several current TCPA consent rules.

The first petition, filed by the Ecommerce Innovation Alliance (EIA), seeks clarification that when a telemarketer has received express written consent to make telephone solicitations (i.e., calls or text messages), it may do so at any time of day, including during the FCC’s “quiet hours” (between 9:00 pm and 8:00 am), and rely on the number’s area code and prefix (NPA-NXX) to determine a mobile phone’s location. Alternatively, the EIA seeks a waiver of the “quiet hours” rules because the FCC has never clearly addressed how a telemarketer can determine the location of a called party who is using a mobile device. Comments and reply comments are due on the EIA’s petition by April 10 and April 25, 2025, respectively.

The second petition was filed by the Edison Electric Institute (EEI) and seeks clarification that, under current FCC consent rules, utility companies may utilize non-marketing, informational “demand response” calls and text messages to customers. “Demand response” programs are aimed at prompting short-term, intentional reductions in electric use by customers during periods of system-wide high usage or imbalances. Utilities use these calls and text messages to prompt customers to temporarily reduce or shift electricity consumption. While FCC rules already permit utilities to send informational messages for calls or text messages that are “closely related” to the utility services, the EEI explains that it remains unclear whether “demand response” messages are considered “closely related” to a customer’s utility service. Comments and reply comments on the EEI’s petition are also due by April 10 and April 25, 2025, respectively.

Notably, both petitions call attention to the chilling effect that an apparent uptick in TCPA lawsuits has had on legitimate business activities. For example, EIA notes that, since November 2024, there have been over 100 TCPA lawsuits filed by a single plaintiff’s attorney related to texts received during the FCC’s “quiet hours.” Similarly, EEI states that member companies have largely shied away from sending “demand response” messages due to the TCPA litigation risk, and, as a result, the lack of customer participation in these programs has negatively impacted peak electricity demand and utility customers.

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