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October 2017 TCPA Compliance Monitoring Report
Last month, the Credit Union National Association (“CUNA”) asked the Federal Communications Commission (“FCC” or “Commission”) to create an Established Business Relationship (“EBR”) exception to the Telephone Consumer Protection Act (“TCPA”) for informational calls to wireless numbers. While CUNA’s Petition for Declaratory Ruling requests an alternative exception under the TCPA’s free-to-end-user exclusion authority, creation of an EBR for informational calls to wireless numbers would represent a major shift in TCPA enforcement.
CUNA argues an EBR for informational calls to wireless numbers would better reflect the modern telephone landscape. Many consumers now use a wireless phone as their “home” line. CUNA claims more than half of all telephone subscribers no longer have a residential telephone line. And an increasing number of wireless plans offer unlimited texts and voice minutes, making any additional calls or texts essentially free to consumers according to CUNA. Therefore, CUNA suggests that the TCPA’s historic distinction between calls to residential and wireless numbers no longer makes sense.
However, establishment of an EBR for wireless informational calls may be a longshot for CUNA and other industries that rely on autodialed or prerecorded calls to contact customers. The Commission eliminated the EBR for telemarketing calls to residential lines in 2012. The Commission also amended its rules in 2012 to completely omit the EBR, leaving only a narrower statutory exception to the TCPA for certain noncommercial and non-telemarketing calls.
When it eliminated the EBR in 2012, the Commission found that many companies exaggerated or invented business relationships with customers or potential customers in an attempt to evade the TCPA. The Commission also noted that many consumers view prerecorded calls as “abusive of the consumer’s right to privacy” even where an established business relationship exists.
Moreover, while Chairman Pai has generally favored deregulatory policies, TCPA protections are a notable exception to the current FCC’s hands-off approach. Under Chairman Pai, the Commission has issued several eye-popping TCPA forfeitures, pierced the corporate veil to find business owners jointly and severally liable for those forfeitures, and aggressively interpreted its authority to enforce caller ID spoofing violations as a means of attacking robocallers. Therefore, CUNA’s request to expand the EBR to wireless calls may face an uphill battle.
On the other hand, CUNA’s alternative approach seeking an exception from the TCPA as a free-to-end-user service that benefits consumers stands a much better chance of succeeding. The FCC has granted other similar exceptions (with explicit limits on the types of calls subject to the exception) for other industries, most notably including certain banking alerts. The Commission has also exempted certain calls containing medical information and some package delivery alerts from the TCPA.
The Commission issued a Public Notice seeking comment on CUNA’s Petition. The comment deadline is November 6, 2017, and the reply comment deadline is November 21, 2017.
If you would like to comment on CUNA’s Petition or have any questions about how the TCPA may impact your business, please contact Seth Williams, slw@commlawgroup.com, Nate Hardy, njh@commlawgroup.com, or Jane Wagner, jlw@commlawgroup.com.
