Petition for Expedited Declaratory Ruling, Clarification, or Waiver of the American Bankers Association, American Financial Services Association, Consumer Bankers association, Credit Union National Association, Independent Community Bankers of America, Mortgage Bankers Association, and National Association of Federally-Insured Credit Unions
The American Bankers Association (ABA), American Financial ServicesAssociation (AFSA), Consumer Bankers Association (CBA), Credit Union NationalAssociation (CUNA), Independent Community Bankers of America (ICBA), MortgageBankers Association (MBA), and National Association of Federally-Insured CreditUnions (NAFCU)1 (collectively, the Associations) request an expedited declaratoryruling, clarification, or waiver stating that phone calls and text messages placed by banks,credit unions, and other customer-facing financial services providers (collectively,financial institutions) using an automatic telephone dialing system (autodialer) orprerecorded or artificial voice on matters related to the COVID-19 pandemic are “call[s]made for emergency purposes,” and thus may be placed without the consent of the calledparty, pursuant to 47 U.S.C. § 227(b)(1)(A) (Emergency Purposes Exception, orException).
Specifically, these phone calls and text messages (collectively, calls) may includeoutreach to customers and members (hereinafter referred to collectively, as consumers) tooffer payment deferrals, fee waivers, extension of repayment terms, or other delays inpayment, modification, or forbearance on mortgage payments or other loans; to adviseconsumers of branch closings, service limitations, reduced hours, or the availability ofremote banking or other remote access options; to warn consumers of potential fraud onthe consumer’s account; or otherwise to make consumers aware of programs, relief, andresources offered by the institution in response to the pandemic. The calls that theAssociations seek to place under the Emergency Purposes Exception are solely informational calls made in good faith to assist consumers and do not include calls thatcontain advertising or telemarketing or seek to collect payment on a debt. These timesensitivecalls must be placed using automated means. Manual dialing does not achievetimely notification of consumers.
Federal Communications Commission (Commission) regulations implementingthe Telephone Consumer Protection Act (TCPA) provide that the Emergency PurposesException exempts “calls made necessary in any situation affecting the health and safetyof consumers.” On March 20, 2020, the Commission confirmed that the “COVID-19pandemic constitutes an ‘emergency’” under the TCPA. The calls that banks, creditunions, and other customer-facing financial institutions seek to place on matters related tothe pandemic are intended to protect or support the financial health or safety ofconsumers. Calls that advise consumers of branch closings, service limitations, reducedhours, or the availability of remote banking and other remote customer service optionsprotect the physical health or safety of consumers and employees, by preventingunnecessary physical contact between consumers and employees. As such, these callsrelated to COVID-19 clearly fall within the Emergency Purposes Exception.
However, neither the Commission nor the judiciary has addressed the applicationof the Exception in the context of calls placed by financial institutions during a publichealth emergency. The lack of Commission and judicial precedent and the threat of classactionlitigation may lead financial institutions to limit the communications they send toassist consumers on matters related to the pandemic. This result would thwart thedirectives issued by the Bureau of Consumer Financial Protection (Bureau) and theFederal banking agencies that financial institutions should work “constructively” and“prudently” with consumers impacted directly or indirectly by COVID-19. Constructiveengagement with consumers is best achieved by proactive outreach communication bythe institution through phone calls and text messages.
The Associations urge the Commission to ensure that these communications maybe freely made by confirming that calls and text messages placed by financial institutionsrelated to COVID-19 are calls made for emergency purposes, or by granting a temporary waiver of the Commission’s definition of “emergency purposes,” adopted throughregulation, to allow these calls related to this national emergency.
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