The Supreme Court has confirmed that municipalities and utilities can send text messages containing informational or emergency content to any phone number that has been provided to them in the standard course of doing business (e.g., providing it as contact info, applying for a new account) as long as the message is not being sent using an "Auto-Dialer" (TextPower never has and never will use this equipment).
Some utilities have told TextPower that the main reason they are reluctant to send messages to their customers is fear of violating TCPA regulations. According to TextPower’s TCPA counsel (as recently detailed in a TCPA webinar for utilities), utilities and municipalities can send messages without violating TCPA laws thanks to a recent unanimous decision by the Supreme Court of the United States (SCOTUS) in regard to sending text messages.
The most important points from this decision are:
- Text messages are only addressed in the TCPA law if they are sent by using an AutoDialer (ATDS). SCOTUS defined an AutoDialer as "equipment with the capacity to store or produce telephone numbers to be called, using a random or sequential number generator" in their Facebook v. Duguid decision from April 1, 2021. The specific court language stated that the kind of messages sent by TextPower emanate from equipment that is “...not an autodialer” because “it neither stores nor produces numbers ‘using a random or sequential number generator.’” In short, texting from a list of phone numbers provided by the utility, which is specifically the service that TextPower provides, does not fall under the Supreme Court’s ATDS definition and therefore is not subject to TCPA guidelines.
- There is no change to the 2016 Edison FCC Declaratory ruling that utilities have consent if they received the phone number from the customer at some point in their business relationship.
- Any limitations placed on the number of texts to a number or sent within a 24-hour period by municipalities as outlined in the December 2020 FCC ruling should not apply to the informational text messages being sent over the TextPower platform. The limitation applies only to texts to numbers for which you do not have consent to contact and fall under certain exceptions.
- The limitations to text messaging only apply if the call/text falls under one of the very narrow exceptions (such as package delivery, HIPPA communications, etc.). The type of texts utility companies send through the TextPower system do not fall under these narrow exceptions.
SCOTUS was clear that mobile users who opt-out of receiving text messages must still be removed from the opt-in list and no further texts may be sent to them unless they opt themselves back in. TextPower automatically handles this opt-out method and adheres to it rigorously. Recipients of a text message simply reply to any text message with STOP, QUIT, CANCEL, END or UNSUBSCRIBE to opt out.
As an additional protection mechanism TextPower’s opt-out process goes a step further: Once a number is opted out the only way that it can be opted back in (which is the only way that it can receive any messages from us) is to text a keyword from the mobile device. This is a form of protection for the owner of the mobile number, as well as the utility to prevent you from inadvertently opting a number back in through a subsequent file upload.
You can read a detailed account of this court decision and how it affects utilities here: