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Financial Associations Seek Declaration To Allow Their Covid-19 Related Communications as TCPA Emergency Exceptions

FCC regulations implementing the TCPA provide that the Emergency Purposes Exception exempts “calls made necessary in any situation affecting the health and safety of consumers.”  On March 20, 2020, the FCC confirmed “COVID-19 is a pandemic which constitutes an ‘emergency’” under the TCPA.”  However, as we previously reported, this ruling qualifying calls as emergency purposes is rather narrow, it only includes calls where: “the caller must be from a hospital, or be a health care provider, state or local health official, or other government official as well as a person under the express direction of such an organization and acting on its behalf.  [And], the content of the call must be solely informational, made necessary because of the COVID-19 outbreak, and directly related to the imminent health or safety risk arising out of the COVID-19 outbreak.  The ruling also reaffirmed that advertisements (even from groceries) or debt collection calls cannot constitute emergency purpose.”

Various Associations representing the nation’s consumer banking industry have filed a petition today urging the FCC to ensure that communications utilizing an autodialer or pre-recorded voice may be made freely by financial institutions related to COVID-19, as deemed to be made for emergency purposes.  The half-dozen associations (including the American Bankers Association (ABA), American Financial Services Association (AFSA), Consumer Bankers Association (CBA), Credit Union National Association (CUNA), Independent Community Bankers of America (ICBA), Mortgage Bankers Association (MBA), and National Association of Federally-Insured Credit Unions (NAFCU)) argued that the lack of FCC and judicial precedent in concert with a threat of class-action litigation could lead financial institutions to limit essential communications to assist consumers on matters related to the pandemic. 

They identified at least three categories of critical communications they seek immediate declaratory clarification on:

1)     Calls to offer deferrals, extensions, or other mortgage or loan payment modifications

2)     Calls and text to advise consumers of branch closings, service limitations, reduced hours, or availability of remote account options

3)     Calls and text to warn consumers of potential fraud on the consumer’s account

The Associations argument boils down to the notion that communications that consumer financial institutions initiate on matters related to the pandemic are intended to protect consumers’ financial health and safety. Calls that advise consumers of branch closings, service limitations, or the availability of remote customer service options protect the physical health or safety of consumers and employees, by preventing unnecessary physical contact between consumers and employees. “As such, these calls related to COVID-19 clearly fall within the Emergency Purposes Exception.”  The Associations alternatively invoked 47 C.F.R. § 1.3 to petition the FCC to find that good cause exists for a temporary waiver of that regulatory definition for COVID-19-related calls.  The full text of the petition can be read here.  TCPAWorld will closely monitor the FCC’s response to this petition.

© Copyright 2020 Squire Patton Boggs (US) LLP


About this Author


Jason M. Ingber’s practice focuses on consumer class action defense and breach of contract litigation. Jason specializes in cases brought under the Telephone Consumer Protection Act and has handled all phases of litigation in cases involving consumer protection statutes, including the Fair Credit Reporting Act, the Fair Debt Collection Practices Act and the California Homeowner Bill of Rights.

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