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May 30, 2020

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U.S. Financial Institutions Petition FCC to Exclude Their Informational Calls from TCPA Liability During the COVID-19 Pandemic

On March 30, 2020, the American Bankers Association (“ABA”) and several other associations of banks and credit unions (together, “petitioners”) effectively asked the FCC to exempt all COVID-related calls and texts to consumers from TCPA liability as communications “made for emergency purposes.” Petition for Expedited Declaratory Ruling, Certification, or Waiver of the American Bankers Association et al., CG Docket No. 02-278, at 4 (Mar. 30, 2020) [hereinafter “ABA Petition”].

Under the FCC’s “emergency purposes” exception to the TCPA, a caller need not receive the consent of the recipient to make an autodialed or prerecorded phone call or to send a text message “made necessary in a[] situation affecting the health and safety of consumers.” 47 C.F.R. § 64.1200(f)(4) (2019). While the FCC already has clarified on its own motion that the COVID-19 pandemic constitutes an “emergency” under the TCPA, and that during the pandemic, state and local governments, hospitals and other healthcare providers can use the emergency purposes exception to make informational calls “directly related to the imminent health or safety risk arising out of the COVID-19 outbreak,” the FCC has not addressed whether the “emergency purposes” exception could apply to calls made by financial institutions. While the financial industry has received some prior TCPA relief from the FCC for fraud alert calls, ABA and the other petitioners seek relief to implement the financial provisions of the new Coronavirus Aid Relief and Economic Security (“CARES”) Act, in addition to other purposes.

The petitioners seek approval from the FCC to exempt three categories of unsolicited communications otherwise generally covered by TCPA consent requirements.

  • First, an exemption for calls or texts regarding modifications to mortgages and other loans. Under the CARES Act, borrowers with a federally backed mortgage loan may request up to 180 days’ forbearance on loan payments. Additionally, the CARES Act temporarily prohibits loan servicers from foreclosing on property and requires credit furnishers that defer payment pursuant to the Act to nevertheless report consumer accounts as current. S. 3548, 116th Cong. §§ 4021 & 4022 (2020). The petitioners argue that it would serve the public interest to allow financial institutions to contact consumers freely regarding CARES Act relief programs, without fear of TCPA liability

    In a similar vein, the petitioners argue that financial institutions’ central role in the CARES Act’s small-business loan program creates a need for unhampered communication between banks, credit unions, and business owners. Id.see also S. 3548, 116th Cong. § 1102 (offering government-backed loans to assist small businesses with paying wages, rent, and utilities during the COVID-19 pandemic).

  • Second, the petitioners seek an emergency-purposes exemption for unsolicited calls and texts regarding branch closings, service limitations, and remote-banking services. The petitioners argue that the FCC should promote remote banking (and, indirectly, promote social distancing) by allowing financial institutions to place unsolicited calls about this type of service update. Allowing that, the petitioners assert, will minimize the effect of COVID-19 on consumer access to financial services.

  • Third, the petitioners seek an exemption for calls and texts containing fraud and identity-theft warnings. In their petition memorandum, petitioners cite federal publications forecasting a rise in identify theft and unauthorized purchases during the COVID-19 pandemic. See e.g., Consumer Fin. Prot. Bureau, Protect Yourself Financially from the Impact of the Coronavirus (Mar. 16, 2020). Petitioners assert that only automated calls or texts can achieve the speed necessary to promptly detect and deter increasing instances of fraud.

The petitioners assert that unsolicited calls and texts regarding federal relief programs, remote banking and fraud alerts would support the “financial health and safety” of consumers. And the FCC — petitioners argue — should declare that such communications are for “emergency purposes” and therefore exempt from TCPA liability during the current pandemic. The petition states that any call or text that might qualify for this extraordinary FCC relief would be purely informational and would not include advertising or marketing content or be sent for debt-collection purposes.

In the alternative, the petitioners ask the FCC to temporarily waive TCPA liability for calls and texts from financial institutions regarding COVID-19, in lieu of declaring such communications exempt under the emergency purposes exception.

The FCC is currently seeking comment on the ABA Petition until May 6, 2020. It will also accept any reply comments by May 21, 2020, before ruling on the petition. See Fed. Commc’ns Comm’n, DA-20-384 (Public Notice) (Apr. 6, 2020).

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About this Author

Laura Phillips, Drinker Biddle Law Firm, Washington DC, Communications Law Attorney
Partner

Laura H. Phillips is a partner in and chair of the firm's Government & Regulatory Affairs Practice Group and a member of the Telecommunications & Mass Media Team.  She has over 25 years of experience working in nearly every aspect of the telecommunications market.

Laura counsels wireless and wired technology entrepreneurs and represents these clients on issues related to the development of new technologies, including devoting substantive attention to the development of spectrum auctions, network...

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Anthony F Jankoski Litigation Faegre Drinker Biddle & Reath Washington, D.C.
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Anthony Jankoski* assists clients with various aspects of legal proceedings and trial preparation, including legal research and the drafting of motions and other legal memoranda.

Anthony served as a judicial extern to Chief Judge Ruben Castillo of the U.S. District Court for the Northern District of Illinois. He also was a summer associate at Drinker Biddle & Reath LLP, during which time he drafted memoranda on issues in matters involving the Foreign Corrupt Practices Act (FCPA), tax evasion, the False Claims Act, patent infringement and questions regarding due process, equal protection and the Commerce Clause.

*District of Columbia Bar application pending; practice supervised by partners of the firm who are active D.C. Bar members pursuant to D.C. Bar Rule 49(c)(8).

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