ABA Banking Journal - November/December 2016 - 49
'When Can I Call My Customer?'
This should be a simple question for bankers, but it's not.
BY JONATHAN THESSIN
25-year old statute called the
Telephone Consumer Protection
Act has spawned a confusing
set of rules about customer
contact. But banks ignore
TCPA at their peril: each unlawful
phone call can cost up to $1,500
TCPA prohibits, with limited
exceptions, telephone calls to cell
phones using an automatic telephone
dialing system-better known as an
"autodialer"-unless the caller has
the prior express consent of the called
party. TCPA was enacted in 1991,
at a time when cell phones were not
widely owned. Those who owned one
were charged by the minute. Congress
sought to protect these cell phone
users from incurring charges from
(unwanted) telemarketing calls.
informational calls to a residential
number (i.e., a landline).
Text messages are treated the same as
calls to a cell phone.
What is an autodialer? That question
does not have a clear answer. The
statute defines an autodialer as
equipment that has the capacity "to
store or produce telephone numbers
to be called, using a random or
sequential number generator" and "to
dial such numbers."
TCPA goes beyond restricting
telemarketing calls. It also restricts
informational calls, such as a bank's call
to advise a customer of a low balance or
fraud on the customer's account.
The Federal Communications
Commission has stated that predictive
dialers-equipment that dials a list
of telephone numbers and connects
each answered call to an agent-meets
the definition. But the FCC has also
ruled that an autodialer includes any
equipment that has the "potential
ability" to function as an autodialer.
The FCC has even suggested that
any phone more advanced than a
rotary phone could be an autodialer-
including an ordinary smartphone.
In sum, these are the rules:
* Telemarketing calls. TCPA requires
prior express written consent to
make (a) telephone calls using an
autodialer or a prerecorded voice
to deliver a telemarketing message
to a wireless number; and (b)
prerecorded telemarketing calls to a
Bankers need to assess whether the
phones they use could be considered
autodialers and, if so, whether calls
made from these phones comply
with TCPA. If calls are made with the
consent of the called party, bankers
need assess whether that consent is
documented sufficiently to withstand
* Informational calls. TCPA requires
prior express (oral or written) consent
to make informational calls to a
wireless number using an autodialer.
No consent is needed to make
Compliance with TCPA became even
more difficult when the FCC held
that a business is liable for calling a
wireless number for which the caller
has obtained consent but which has
been reassigned to another user. The
FCC included a safe harbor for the first
call made to a reassigned number, but a
caller may not learn of the reassignment
during that initial call. Nonetheless,
the caller is liable under TCPA for any
subsequent calls made to that number.
TCPA authorizes the FCC to exempt
certain categories of calls from
TCPA's consent requirements. At
ABA's request, the FCC last year
exempted four categories of calls made
by financial institutions, including
calls made to advise customers of
suspicious activity on the customer's
account or of a data breach. The FCC
attached several conditions to the
exemption, including that exempted
calls be made only to a number
provided by the customer. ABA
has asked the FCC to remove this
counterproductive "provided number"
condition from the exemption.
Nine parties have challenged the FCC's
interpretation of TCPA, and ABA filed
a friend-of-the-court brief in support
of that challenge. Although that legal
action, if successful, may provide some
relief for banks, compliance officers will
need to continue to understand their
bank's telephone technologies and
calling practices to avoid lawsuits and
JONATHAN THESSIN is senior
counsel in ABA's Center for
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