May 16, 2018

Following NAFCU meeting, FCC seeks comments on 'autodialer' definition

Following a meeting Monday with NAFCU President and CEO Dan Berger and Federal Communications Commission (FCC) Chairman Ajit Pai to discuss the FCC's current approach to rulemaking regarding the Telephone Consumer Protection Act (TCPA) and credit union concerns, the commission yesterday issued a request for comments on various TCPA issues, including the definition of an Automatic Telephone Dialing System (ATDS).

The FCC cited the March decision from the U.S. Court of Appeals for the D.C. Circuit, which invalidated the FCC's definition of "autodialer" and rejected the commission's interpretation of when a caller violates the TCPA by calling a reassigned number, in its request. The five aspects the FCC would like comments on include:

  • what constitutes an ATDS;

  • how to treat calls to reassigned wireless numbers under the TCPA;

  • how a called party may revoke prior express consent to receive robocalls;

  • two pending petitions for reconsideration of the FCC's Broadnet declaratory ruling related to its interpretation of a "person"; and

  • a pending petition for reconsideration of the 2016 federal debt collection rules.

Initial comments are due to the commission June 13.

NAFCU has urged the FCC for more clarity and flexibility so credit unions can contact their members without fear of breaking the law. In light of the recent ruling, NAFCU has encouraged the FCC to clarify the definition of an ATDS for the sake of consistency and take other action to "ensure that consumers whose mobile phone numbers have been reassigned continue to receive important communications." Earlier this month, NAFCU, along with more than a dozen other trade associations, petitioned the FCC to do just this.

Related to revoking prior consent under the TCPA, an Ohio federal district court recently ruled that a consumer who consents to receiving phone calls as part of a cardholder agreement cannot unilaterally revoke that consent. Another decision last year determined that TCPA consent is not revocable when the parties engage in a bargained-for-exchange and execute a contract. The court's decision in the ACA International v. FCC suit alluded to the possibility of contracting for revocation rights, but did not decide the issue.

NAFCU is also seeking credit unions' feedback on the FCC's second further notice of proposed rulemaking related to calls made to reassigned numbers and liability under the TCPA. The FCC is in the information-gathering stage of the rulemaking process and is expected to issue a rule on reassigned numbers later this year. Credit unions can learn more and provide comments to NAFCU on this rulemaking through the association's Regulatory Alert.