Many of us have likely received a notification from our bank or credit card company concerning suspected fraud or improper charges.  However, the legality of those messages is not always clear.  To this end, on October 14, 2014, the American Bankers Association (Association) filed a petition for exemption requesting that the Federal Communications Commission (FCC) exempt “certain time-sensitive information calls, placed without charge to the called parties from the Telephone Consumer Protection Act’s (TCPA)restrictions on automated calls to mobile devices.”

Specifically, the Association asked the FCC to exempt automated calls and text message alerts to wireless telephone numbers concerning:  (1) transactions and events that suggest a risk of fraud or identity theft; (2) possible breaches of the security of customers’ personal information; (3) steps consumers can take to prevent or remedy harm caused by data security breaches; (4) money transfer notifications and notifications of actions needed to arrange for receipt of pending transfers.  The Association’s petition explains that automated communications to mobile devices would be without charge and are best suited to provide quick and efficient notifications to customers in time-sensitive situations, such as in cases of data security breaches or attempted identity theft.  Additionally, the petition proposed certain conditions on these automated calls and text message alerts, if exempted.  In particular, the petition specifies that the calls or messages would not include any solicitation, telemarketing, or advertising information, and would only be sent to the telephone number of the consumer to whom the alert or notification is directed.

Under the TCPA and the FCC’s implementing rules, an entity is prohibited from using an automatic telephone dialing system or an artificial or prerecorded voice to make a call to a wireless number absent an emergency or the prior express consent of the called party.  Notably, the FCC may exempt calls to wireless numbers that are not charged to the called party and which protect consumer privacy.

In light of the petition, the FCC is now seeking comment on the issues raised, including whether the exemptions requested allow the financial services industry to reduce privacy and security risks proactively so that fraud, data security breaches, and identity theft are less likely to occur.  Comments must be submitted to the FCC by December 8, 2014 with reply comments due by December 22, 2014.