TCPA Rules for Utilities: Service Calls vs. Energy Supplier Sales

A utility that texts customers about an outage, a meter visit, or a shutoff warning usually has the consent it needs, because the customer gave the utility a phone number. A retail energy supplier pitching a fixed rate to the same household is in a different spot. That call is telemarketing, and the TCPA’s sales-call rules apply in full. The heavier exposure sits on the supplier side of that line, and a supplier facing a claim can often find strong defenses in its call and enrollment records.

What did the FCC tell utilities in 2016?

The FCC said that giving a utility a phone number is consent to robocalls and automated texts closely related to the service, and it declined to decide whether that consent reaches anything more.

The ruling came on a petition from the Edison Electric Institute and the American Gas Association, released August 4, 2016 as FCC 16-88, 31 FCC Rcd 9054. The FCC held that customers who give a wireless number when they sign up, or later supply or update it, “have given prior express consent to be contacted by their utility company at that number with messages that are closely related to the utility service,” unless the customer has said otherwise. Under paragraph 30 of the same ruling, that covers warnings and updates about planned or unplanned outages, restoration checks, notice of meter work, tree trimming, or other field work that directly affects the customer’s service, notice that a customer may qualify for subsidized or low-cost service based on factors like age, income, or disability, and brown-out warnings. The same ruling answered a petition from Blackboard about school calls to students and parents, covered in our post on college enrollment calls and texts.

Billing gets its own rule. Absent facts pointing the other way, the 2016 ruling treats calls made before a shutoff that warn nonpayment is likely to lead to curtailment as covered. After service ends, “routine debt collection calls by utilities to those customers will continue to be governed by existing rules and requirements.” The FCC also put the proof on the caller: “the utility company will bear the burden of showing it obtained the necessary prior express consent.” The same ruling found that these service calls aren’t telephone solicitations, so the Do Not Call rules don’t reach them.

Two later rulings filled gaps. In December 2022, the FCC extended the same consent analysis to residential landlines in FCC 22-100, 37 FCC Rcd 15472, and in paragraph 53 confirmed that a number given to the customer’s retail provider also lets “an upstream electric utility” that supplies that provider, or a utility affiliate, make informational calls closely related to the service, but not telemarketing. In June 2025, the FCC’s Consumer and Governmental Affairs Bureau confirmed in DA 25-496 that demand-response messages from electric and gas utilities, sent at peak or near-peak times to get customers to cut usage, are closely related to the service. The Bureau didn’t cover messages asking customers to enroll in a program, and it said the ruling “does not extend to calls or texts that include or introduce an advertisement or constitute telemarketing.” Some outage alerts may also fit the separate emergency purposes exception, a question the 2016 ruling didn’t reach.

Does the 2016 ruling still hold up after McLaughlin?

It still matters, but it no longer decides the case alone. In June 2025, the Supreme Court held in McLaughlin Chiropractic Associates v. McKesson Corp. that “District courts are not bound by the agency’s interpretation, but instead must determine the meaning of the law under ordinary principles of statutory interpretation, affording appropriate respect to the agency’s interpretation.” Every utility ruling above reads the term “prior express consent,” so a court in a private suit now decides for itself whether it agrees.

I think the core of the 2016 ruling survives that test well. The Ninth Circuit held in Van Patten v. Vertical Fitness Group that “an effective consent is one that relates to the same subject matter as is covered by the challenged calls or text messages.” That test came from reading the FCC’s 1992 order, which the court didn’t question, but the court also tied it to the TCPA’s text and purpose. A court deciding the question fresh has good reason to land in the same place. Our earlier post on the scope of TCPA consent covers how courts draw that line.

The weakest link is the 2025 demand-response ruling. It’s a bureau-level decision, not a full Commission vote, and it covers messages asking customers to change how they use power. A plaintiff may argue those texts look like the program solicitations the FCC excluded in 2016, but the Bureau considered and rejected that argument, comparing peak-demand messages to the brown-out warnings the 2016 ruling already covers. Keeping each message limited to the peak event, with no enrollment or product pitch, is what keeps it inside the ruling.

The practical fix doesn’t depend on any of this. In the 2016 ruling, the FCC wrote that “we strongly encourage utility companies, and all robocallers, to inform customers during the service initiation process” that the number will get automated calls about the service. A utility that does that has documented consent that doesn’t need the FCC’s help in court, and I’d treat that disclosure as the cheapest TCPA protection a utility can buy.

Where does a service call become marketing?

A call or text becomes telemarketing when it is made “for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services,” in the words of the FCC’s definition at 47 C.F.R. § 64.1200(f)(13). The 2016 ruling said its relief “does not extend to every call made by a utility company to its customer.” Footnote 103 of the 2016 ruling also leaves outside the implied consent “calls soliciting voluntary participation in programs such as, for example, energy saving programs to reduce monthly energy bills or donations to subsidize other energy consumers.” Those calls need their own consent, and if they encourage a purchase, they’re telemarketing.

Prerecorded marketing calls, and marketing calls or texts sent with equipment that meets the TCPA’s narrow autodialer definition, need prior express written consent. That means a signed agreement, which can be electronic, that names the number, authorizes the seller’s autodialed or prerecorded telemarketing, and discloses that signing isn’t a condition of purchase, under § 64.1200(a)(2) and (f)(9).

The risk I’d watch most closely is a service channel that slowly picks up sales content. An outage text with a line promoting a partner’s surge-protection plan, or a payment reminder that pitches a home warranty, can turn an informational message into a marketing one. In my view, one sales line is enough to put the whole message at risk. Keep service alerts on their own sender ID and short code, and run marketing through a separate, consented program.

Opt-outs need the same separation. Customers can revoke consent by any reasonable method under § 64.1200(a)(10). The FCC’s Consumer and Governmental Affairs Bureau delayed until April 11, 2026 the part of that rule that would apply a stop request to unrelated messages from the same caller, per DA 25-312, so a utility sending both alerts and promotions should track opt-outs by message stream.

Why do retail energy suppliers face more TCPA risk?

Because nearly everything a supplier does by phone to win customers is telemarketing, and much of it can reach people who have never done business with the supplier.

A supplier’s sales calls to residential numbers on the National Do Not Call Registry, the federal list of numbers whose owners don’t want telemarketing calls, can violate § 64.1200(c)(2) unless the person gave permission or has an established business relationship with the supplier. A supplier whose routine practices meet that rule’s standards, including written procedures, trained staff and vendors, an internal do-not-call list, and a Registry scrub no more than 31 days old, has a safe harbor for calls made in error. The private claim belongs to someone who received “more than one telephone call within any 12-month period by or on behalf of the same entity” under 47 U.S.C. § 227(c)(5), and the same subsection gives a defense for reasonable practices and procedures to prevent these calls. Prerecorded sales calls, including ringless voicemail drops, can add a separate written-consent claim.

The utility’s customer relationship doesn’t transfer. The FCC’s rule says a customer’s established business relationship with one business “does not extend to affiliated entities unless the subscriber would reasonably expect them to be included given the nature and type of goods or services offered by the affiliate and the identity of the affiliate,” under § 64.1200(f)(5)(ii). A competitive supplier owned by the same parent as the local utility shouldn’t assume the utility’s customers are fair game for sales calls, and an unaffiliated supplier has no claim to them at all.

In Dickson v. Direct Energy, LP, the Sixth Circuit revived a proposed class action over ringless voicemails allegedly advertising the supplier after the trial court dismissed it for lack of standing. The court held that “regardless of the number of RVMs Dickson received, his asserted injury bears a close relationship to one recognized at common law.”

Lead generation is the other pressure point. In Richardson v. Verde Energy USA, Inc., the court described a chain in which an advertising company collected numbers through online cash promotions with a “TCPA consent form” covering its marketing partners, the supplier passed the leads to a telemarketing firm, and its call centers dialed. According to the court docket, the parties settled on a class basis, and the court entered an order and final judgment on May 19, 2020 dismissing the claims with prejudice. A settlement is not an admission of liability. I’d read that chain as a checklist of what a supplier must prove about every lead it buys.

What defenses does a supplier have when a vendor made the calls?

More than a demand letter usually suggests, in my view, and many of them turn on call and enrollment records.

Who actually called. In Lindenbaum v. Realgy, LLC, the plaintiff received prerecorded “press one” calls about her electric bill, and a live agent named the supplier. The Northern District of Ohio granted summary judgment to the supplier, finding the agent’s statement was inadmissible hearsay and noting that “any energy provider, competitor, or scammer seeking financial information would ask for this material.” The supplier’s testimony that it didn’t place marketing calls or use those caller ID numbers, and had no record of calling her, carried the motion. With no admissible evidence of who called, the court also refused to assume that the supplier’s telemarketing vendor did.

Permission and existing relationships. In Johansen v. National Gas & Electric, LLC, a consumer on the Registry agreed during vendor calls to hear from an enrollment representative and then completed enrollment with false account details. The Southern District of Ohio held that “the ETM-related calls are excluded from the definition of a telephone solicitation because plaintiff gave prior express permission to be called.” The court also held that the supplier’s established relationship covered calls its vendor made on its behalf, though that part also relied on Chevron deference to FCC guidance, which carries less weight after McLaughlin. Call recordings and the plaintiff’s own admissions made both holdings possible, and a supplier that keeps its own recordings doesn’t have to depend on the plaintiff producing them.

Agency. The Ninth Circuit stated the rule in Jones v. Royal Administration Services, Inc.: “A defendant is vicariously liable for violations of the TCPA where common law principles of agency would impose it.” It then affirmed summary judgment for the seller, finding among other things that it lacked enough control over how the vendor called. Our post on vendor contracts and indemnity covers the contract terms that speak to control and indemnity.

TCPA exposure for utility and supplier calls

When an energy-sales TCPA claim arrives

1. Put a litigation hold on the dialer and texting-platform records for the number, including vendor systems and voicemail-drop logs, along with the enrollment and consent records tied to it.
2. Pull the internal do-not-call list and the date any stop request from that number was logged and honored.
3. Pull the Registry scrub files and the version dates used for each campaign that reached the number.
4. Collect vendor and lead-source contracts, approved scripts, verification recordings, and any prerecorded or ringless voicemail audio.
5. Talk to a lawyer before answering the demand letter, calling the claimant, or offering a bill credit to close it out.

The firm’s TCPA defense lawyers page summarizes how claims involving energy telemarketing and utility service alerts are defended.

Questions energy companies ask about the TCPA

Can a utility text a customer about a past-due bill?

Yes, before service is cut off, if the customer gave the utility that number, hasn’t told it to stop, and the message warns that nonpayment could lead to a shutoff. After disconnection, routine collection calls fall back under the general rules and need consent that covers them on its own terms.

Can a retail energy supplier rely on the consent a customer gave the local utility?

Not for sales calls. The FCC’s 2022 ruling let upstream utilities use consent given to a customer’s provider for service matters such as outages, which runs from the retail provider toward the wires company. The order says those calls must be informational and “could not include telephone solicitation or telemarketing.” Suppliers need their own permission, relationship, or written consent.

Does the TCPA apply to door-to-door energy sales?

Not to the knock itself, since the statute covers telephone and fax communications. Follow-up calls and texts are covered, and they’re only as good as the consent collected at the door. Audit the forms and tablets your door-to-door vendors use.

Facing a TCPA claim over energy sales or utility alerts?

If your company has been sued or received a demand letter over supplier sales calls or utility notifications, the enrollment records, vendor contracts, and call logs you keep will shape the defense. Rosenberger + Kawabata represents businesses defending TCPA lawsuits and class actions through its business litigation practice, including claims involving energy telemarketing and utility service alerts. Contact Rosenberger + Kawabata online for a free and confidential consultation, or call (310) 894-6921.

Sources

The statute is the Telephone Consumer Protection Act at 47 U.S.C. § 227. The FCC’s rules are at 47 C.F.R. § 64.1200, as published in the eCFR through December 22, 2025. The FCC rulings are the Blackboard and Edison declaratory ruling, FCC 16-88, 31 FCC Rcd 9054 (2016); the 2022 order on reconsideration and declaratory ruling, FCC 22-100, 37 FCC Rcd 15472 (2022); the demand-response declaratory ruling, DA 25-496 (CGB June 9, 2025); and the revocation waiver order, DA 25-312 (CGB Apr. 7, 2025).

The court decisions are McLaughlin Chiropractic Associates, Inc. v. McKesson Corp., 606 U.S. 146 (2025); Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037 (9th Cir. 2017); Jones v. Royal Administration Services, Inc., 887 F.3d 443 (9th Cir. 2018); Dickson v. Direct Energy, LP, 69 F.4th 338 (6th Cir. 2023); Richardson v. Verde Energy USA, Inc., 354 F. Supp. 3d 639 (E.D. Pa. 2018), with the case docket, No. 5:15-cv-06325; Lindenbaum v. Realgy, LLC, No. 1:19-cv-2862 (N.D. Ohio June 7, 2022); and Johansen v. National Gas & Electric, LLC, No. 2:17-cv-587 (S.D. Ohio Aug. 16, 2018).

This post is general information about the Telephone Consumer Protection Act and related laws as of December 22, 2025. It is not legal advice, and reading it does not create an attorney-client relationship. Courts and the FCC change the rules in this area often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.