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$100 Million Dollar Text

The Gray Area of the TCPA

On November 19, 2013, a man named Michael Grant filed a class-action suit against Commonwealth Edison, the largest electric utility company in Illinois. His reason for filing the suit was that he had received a text message that stated: You are now subscribed to ComEd outage alerts. Up to 21 msgs/mo. Visit ComEd.com/text for details. T&C:agent511/tandc. STOP to unsubscribe.

Grant was able to sue Commonwealth Edison for engaging in unsolicited text messages, which is in violation of the Telephone Consumer Protection Act (TCPA), and therefore viable for a class-action suit. Grant was represented by the Chicago firm Edelson, which ended up receiving $1.6 million from Commonwealth Edison after the settlement.

After the suit was settled, Commonwealth Edison persisted that the company had done nothing wrong. The nature of the text messages was to warn customers of potential power outages caused by storms, electrical failures, natural disasters and other unforeseen circumstances. Commonwealth Edison considered these text messages to fall under the category of emergency alerts, which was somewhat of a gray area within the TCPA regulations. Despite the personal opinion, Commonwealth Edison finally agreed to settle with the Edelson firm and Grant after the jury suggested a payoff of $100 million in damages. Bob McGee, a spokesman for Consolidated Edison, made a statement outlining the company’s concerns with the settlement: “The good intentions of the TCPA should not inadvertently compromise or affect public safety. Con Edison needs to occasionally reach its customers with safety advice or important information either before, in, or after emergencies.” These alerts are usually automated in order to reach the largest amount of customers in the smallest amount of time, with the lowest possible cost.

Soon after the Commonwealth Edison case, We Energies, a Wisconsin-based utilities company cut back on the automated messages they would send customers involving payments, emergencies, and power outages. However, their customer-base grew frustrated and began filing complaints for an unexpected reason: that they weren’t receiving automated warnings about these issues. After this reaction from customers, We Energies banded together with other electricity utilities companies including Commonwealth Edison, MidAmerican, and Consolidated Edison, and complained to the FCC about the new regulations set on companies of their nature, involving automated warning messages to customers. The FCC received over 55,000 petitions and comments about the TCPA crackdown on these sorts of messages because they were put into place to protect the well-being of customers.

On March 25, 2015, the Consumers Union filed a petition of 130,000 signatures of consumers with the FCC, requesting that they do not allow exceptions from the TCPA for non-emergency messages from electricity and utilities companies, unless expressed permission has been given. This petition represented a shift in consumer opinions about the automated warning messages. However, many utility companies stand firm in their opinions that by giving the companies their telephone numbers, consumers have given consent to receive messages, automated or not. This issue is still up for debate, and as of now continues to be a gray area in the TCPA, as well as for consumers.