The FCC continues to dispose of pending petitions or requests for waiver of its TCPA rules. One slightly unusual request was the petition filed last February by National Grid USA, Inc. (“National Grid”) requesting a limited waiver of section 64.1200(b)(1) of the Commission’s rules to allow it to satisfy its TCPA caller identification requirements by providing a “doing business as” (“DBA”) name it had registered with state utility commissions when placing prerecorded voice calls rather than its legal name. See In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Petition for Declaratory Ruling and/or Waiver submitted by National Grid USA, Inc., CG Docket No. 02-278, filed Feb. 18, 2014 (“National Grid Petition”).
The FCC’s rule implementing Section 227(d)(3)(A) of the Communications Act requires that “all artificial or prerecorded telephone messages (i) shall, at the beginning of the message, state clearly the identity of the business, individual, or other entity initiating the call.” See 47 C.F.R. § 64.1200(b)(1). The rule specifically requires that all artificial or prerecorded calls from a business must include “the name under which the entity is registered to conduct business with the State Corporation Commission (or comparable regulatory authority).” Id. In adopting this requirement, the FCC clarified that “[w]ith respect to the caller’s name, the prerecorded message must contain, at a minimum, the legal name under which the business, individual or entity calling is registered to operate.” Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02-278, Report and Order, 18 FCC Rcd 14014, 14100, para. 144 (2003) (emphasis added). While the FCC recognized that some businesses use a DBA name in messages, the agency clarified that its rule “does not prohibit the use of such [DBA names], provided the legal name of the business is also stated.” Id.
As a matter of policy, the FCC has observed that “adequate identification information is vital so that consumers can determine the purpose of the call, possibly make a do-not-call request, and monitor compliance with TCPA rules.” Id. In reconsidering its rules in 2005, the FCC declined to reconsider the requirement for businesses to use their registered legal names to identify themselves, concluding that the “use of [DBA names] alone in many instances may make it difficult to identify the company calling.” See Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02-278, Second Order on Reconsideration, 20 FCC Rcd 3788, 3805, para. 41 (2005).
National Grid’s petition for declaratory ruling or waiver requested FCC confirmation that a registered DBA satisfies the caller identification requirements for artificial or prerecorded voice calls under the Commission’s rules. National Grid Petition at 2. National Grid’s Petition argued that the FCC had not ruled on the specific question of whether a DBA name registered with the State Corporation Commission or comparable regulatory agency could be sufficient for compliance with the rule. Id. at 5. National Grid states that it has registered the name “National Grid” with the appropriate regulatory authority in each state where it operates and it asserts that in its circumstances, this registered DBA name satisfies the intent of the rules. Id. at 6. A DBA name that is registered with the appropriate regulatory authority, for example, allows called parties the same ability to search for and identify the caller in the same way that a registered legal or official business name does. Id.
National Grid maintains operating subsidiaries that provide gas and electric service in several northeastern states. Id. at 2-3. These operating subsidiaries retain their specific historic names, including, for example, Niagara Mohawk Power Corporation, or the Nantucket Electric Company. Id. However, all operating subsidiaries use the National Grid name for all public-facing purposes, such as marketing, billing, and customer service, and its customers identify “National Grid” as the provider of their utility services. Id. As a result, National Grid asserts that customers will be able to identify it more easily if the caller is identified by its registered DBA name. Id. at 6.
In the alternative to a declaratory ruling, National Grid requested a waiver to allow it to use only the registered DBA name when placing prerecorded calls to customers. Id. at 7. National Grid stated that good cause exists for a waiver because its customers are only familiar with the registered DBA name of “National Grid,” and likely have never heard of the official legacy utility names. Id. National Grid also contends that use of both the official and DBA names unnecessarily prolong the prerecorded calls. Id. at 8.
The FCC’s standards for grant of a waiver are for “good cause shown.” See In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Petition for Expedited Declaratory Ruling and/or Waiver Filed by National Grid USA, Inc., Order, CG Docket No. 02-278, DA 15-1321, para. 9, rel. Nov. 16, 2015. Generally, the FCC may grant a waiver if the relief requested would not undermine the policy objectives of the rule in question, and would otherwise serve the public interest. Id. The FCC concluded that National Grid petition meets these standards. Id. at para. 10. First, the FCC found that National Grid had demonstrated that good cause exists to waive the requirement to provide the name under which the entity is registered to conduct business with the State Corporation Commission when making prerecorded voice calls and allow it to use the name “National Grid” when making artificial or prerecorded voice message calls. Id. at para. 11. Also, the relief granted would not undermine the policy objectives of the rule because consumers will continue to have the ability to search for the identity and contact information of the calling party via the appropriate state or local databases for registered DBA names. Id. at para. 12. Because National Grid demonstrated that its customers are unfamiliar with the legacy names that constitute its subsidiaries’ legal or official business names, the FCC acknowledged that use of these legacy names in its prerecorded messages could confuse some customers as to the identity of the calling party. Id. The FCC found it significant that no customer or other entity had filed comments disputing National Grid’s assertions. Id.
The FCC also determined that National Grid had demonstrated special circumstances warrant a deviation from the general rule in that its customers are familiar with its DBA name and not its official or legal names. Id. at para 13. Moreover, it had registered the “National Grid” DBA name with the appropriate regulatory body in each state in which it conducts business and its customers can access the relevant corporate contact information via the state or local databases for registered DBAs in a way similar to researching registered legal or official names. Id.
Prior requests to allow the use of a DBA name in lieu of an official or legal name to satisfy the requirements of section 64.1200(b)(1) had been rejected because of FCC concerns expressed about the adequacy of such names in identifying the calling party. Id. However, the totality of special circumstances presented in this case alleviates these concerns. Id. The FCC determined that limiting this waiver to the use of the DBA name “National Grid” is in the public interest. Id. Rather than interpreting its rule under the declaratory ruling, the FCC granted National Grid’s waiver request, and dismissed its request for declaratory ruling. Id. While the end result was the same for National Grid, it underscores this FCC’s reluctance to provide relief in cases that might not fit squarely within the set of facts National Grid presented. Thus, other businesses seeking this DBA caller identification relief will still be required to file and prosecute their own petitions.