ABA Expresses Support for Capital One TCPA Petition

The American Bankers Association (ABA) appreciates the opportunity to comment on the Federal Communications Commission’s (Commission) Public Notice seeking comment on the petition filed by Capital One Services, LLC (Petition). In the Petition, Capital One asks the Commission to issue a declaratory ruling to confirm that upon receipt by a bank or business of an “opt-out” request from the recipient of an informational text message placed with an automatic telephone dialing system (autodialer), the bank may send a subsequent message to the recipient to clarify whether the revocation request applies only to that particular type of message or applies to all informational messages placed by the bank.

I. Summary of Comment

Capital One and other banks seek to honor customers’ requests to revoke consent to receive autodialed calls to their cell phones, but banks often confront ambiguous expressions of intent to revoke consent. These expressions can be ambiguous as to whether the customer intends to revoke consent at all. Additionally, where the customer is clear that he or she seeks to revoke consent, the customer’s expression can be ambiguous with respect to the scope of the revocation. As Capital One observes in the Petition, it can be unclear whether a customer wants to revoke consent to receive all calls and texts, to revoke consent to receive a certain type of call or text, or to revoke consent to receive calls and texts relating to a particular account with the bank.

ABA agrees that the Telephone Consumer Protection Act (TCPA) and the Commission’s interpretations of that statute permit a bank or other business, when confronted with an ambiguous expression of revocation, to send a follow-up text message to clarify whether the customer’s revocation applies only to that particular type of message or applies to all informational messages placed by the sender.

In addition to expressing our support for Capital One’s Petition, we ask that the Commission take steps to facilitate banks’ broader efforts to carry out customers’ revocation requests accurately and efficiently. Specifically, we reiterate our request that the Commission confirm that businesses and their customers may agree contractually that customers must use specific methods to revoke their consent to receive autodialed calls. We also ask the Commission to confirm that where no contract governs, a customer may revoke consent (within the meaning of the TCPA) only through “clearly-defined and easy-to-use opt-out methods” provided by the business, as the U.S. Court of Appeals for the District of Columbia Circuit suggested in ACA International v. FCC.

More broadly, we urge the Commission to reform its TCPA interpretations to remove barriers that prevent banks from placing important, and often time-sensitive, calls to their customers. These calls include fraud alerts, data breach notifications, servicing calls, and loan modification outreach. The Commission can achieve this aim most directly by issuing an interpretation of “automatic telephone dialing system” that aligns with the text of the TCPA and congressional intent.

II. ABA Agrees with Capital One that Banks Are Permitted under SoundBite to Clarify the Scope of a Customer’s Revocation Request by Sending a Follow-up Message to the Customer

In 2012, the Commission concluded that, when a consumer sends a text message to revoke consent to receive autodialed calls and text messages, the consumer’s prior express consent to receive calls and texts from the sender includes consent to receive a “final, one-time text message confirming that such consent is being revoked at the request of that consumer.” As Capital One asserts in the Petition, the Commission’s reasoning in SoundBite is equally applicable to the circumstances described in the Petition.8 Properly understood, a customer’s prior express consent to receive calls and texts encompasses a “final, one-time text message confirming” the category of message for which the customer revokes consent. As with the one-time confirmation texts at issue in Soundbite, a one-time message that solely confirms the scope of the customer’s revocation is a “normal communication[] ‘expected or desired’ between consumers and the entities to which they provided prior express consent to receive text messages.”

Moreover, it is critical that banks do not feel compelled, because of regulatory and litigation risk, to apply a customer’s revocation request to a broader category of messages than the customer intends. The autodialed messages that bank customers agree to receive are important and often time-sensitive. As described above, these messages include fraud alerts, data breach notifications, and low balance and over-limit transaction alerts. Customers face real harm if they do not receive these messages because an ambiguous expression of revocation led the bank to opt the customer out of all categories of informational calls and text messages from the bank. For example, a customer may text “stop” to revoke consent to receive future autodialed collection calls or texts, but not intend for that action to opt the customer out of fraud, low balance, or over-limit alerts. Indeed, it is in the customer’s interest that the bank be able to confirm the scope of revocation, rather than interpret the revocation as applying to all communications from the bank, which would deprive customers of many valued messages.

III. The Commission Should Confirm that Parties May Contract to Use Specific Revocation Methods and, for Parties not Bound by Contract, Confirm that a Customer May Revoke Consent Only Through “Clearly-Defined and Easy-to-Use Opt-Out Methods” Provided by the Caller

We assume that the Commission will consider the Petition in the broader context of the Commission’s reconsideration of its 2015 Declaratory Ruling and Order (2015 Order), as required by the D.C. Circuit’s ACA International decision. In the 2015 Order, the Commission concluded that a called party may revoke consent through “any reasonable means.” On review, the D.C. Circuit agreed with the Commission’s statement that the 2015 Order did not address “parties’ ability to agree upon revocation procedures” under the TCPA. In addition, the court stated that “any effort to sidestep” a caller’s revocation method that is “clearly-defined and easy-to-use” may be seen as “unreasonable” and therefore, not a valid revocation.

We renew our request that the Commission clarify that a bank and its customer may agree by contract that the customer must use specific methods to revoke consent to receive autodialed calls. Banks and other businesses can best ensure customers’ revocation requests are received and processed efficiently if the requests are submitted using only methods established by the business and agreed to by contract. In instances where there is no contractual provision, we urge the Commission to confirm, as the court suggested, that a customer may revoke consent (within the meaning of the TCPA) only through “clearly-defined and easy-to-use opt-out methods” provided by the bank or other business. This would further ensure that banks and other businesses accurately and efficiently process customers’ revocation requests. We also ask the Commission not to prescribe particular revocation methods; such prescribed methods are not adaptable to technological change.

IV. The Commission Should Issue an Interpretation of “Automatic Telephone Dialing System” that Facilitates Communication Between a Bank and its Customers and Is Consistent with the Text of the TCPA and Congressional Intent

As we have noted in multiple filings in this docket, it is critical that the Commission act to remove barriers that prevent banks from placing time-critical calls to their customers. We urge the Commission to issue without delay an interpretation of the statutory term “automatic telephone dialing system” that aligns with the text of the TCPA and congressional intent. This action would encourage banks to place the consumer-benefitting calls and text alerts that in far too many instances are not being sent because of the Commission’s past, expansive interpretations of this statute.
Congress passed the TCPA primarily to combat abusive telemarketing. In drafting the TCPA, Congress did not restrict the use of any efficient dialing technology; rather, Congress restricted only a specific type of dialing equipment — an “automatic telephone dialing system” — which Congress limited to equipment that uses “a random or sequential number generator” to store or produce telephone numbers to be called and to dial such numbers. We reiterate our request that the Commission grant the Petition for Declaratory Ruling submitted by the U.S. Chamber of Commerce, ABA, and 15 other groups that asks the Commission to confirm, consistent with the text of the TCPA, that an “automatic telephone dialing system” (autodialer) encompasses only equipment that uses a “random or sequential number generator.”

In a letter to the Commission last month, ABA reported data provided by three ABA members that showed that banks are not able to contact millions of customers with time-sensitive informational messages because of the Commission’s past, expansive interpretations of this statutory term. As described earlier, these calls and text messages include fraud alerts, data breach notifications, servicing calls, and loan modification outreach. It is critical that these messages be completed without delay.

Conclusion

We agree with Capital One that the TCPA and the Commission’s interpretations of that statute permit a bank or other business, when confronted with an ambiguous expression of revocation, to send a follow-up text message to clarify whether the customer’s revocation applies only to that particular category of message or applies to all informational messages placed by the sender. We also reiterate our request that the Commission confirm that businesses and their customers may agree contractually to use specific methods for customers to revoke their consent to receive autodialed calls. In instances where no such contract governs, the Commission should confirm, that a customer may revoke consent (within the meaning of the TCPA) only through “clearly-defined and easy-to-use opt-out methods” provided by the caller.

We also urge the Commission to act more broadly to remove barriers that discourage banks from contacting their customers. Most importantly, the Commission should issue expeditiously an interpretation of the statutory definition of an “automatic telephone dialing system” that is consistent with the text of the TCPA and congressional intent.

Sincerely, 

Jonathan Thessin
Senior Counsel, Consumer & Regulatory Compliance
Regulatory Compliance and Policy