ABA, Trades Highlight Broad Support for Petition to Facilitate COVID-19-Related Calls

Ms. Marlene H. Dortch
Secretary
Federal Communications Commission
445 12th Street, SW
Washington, DC 20554

Dear Ms. Dortch:

The American Bankers Association (ABA), 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 (collectively, the Associations) appreciate the opportunity to submit this reply comment in support of the petition we filed on March 30, 2020 (Petition). In the Petition, the Associations ask the Federal Communications Commission (Commission) to issue an expedited declaratory ruling, clarification, or waiver stating that phone calls and text messages placed by banks, credit unions, and other customer-facing financial service providers using an automatic telephone dialing system (autodialer) or prerecorded or artificial voice on matters related to the COVID-19 pandemic are “call[s] made for emergency purposes,” and therefore, may be placed without the consent of the called party under the “emergency purposes” exception to the Telephone Consumer Protection Act’s (TCPA) consent requirement (Emergency Purposes Exception).

The record in this proceeding demonstrates broad support for the Petition and the need for theCommission to act immediately. Business groups, consumer groups, the Bureau of ConsumerFinancial Protection (Bureau), and Commissioner Michael O’Rielly all have expressed supportfor the Commission taking favorable action on the Petition to facilitate the consumer-benefitting,informational calls that financial institutions seek to make to assist consumers in connection withthe COVID-19 pandemic. These calls must be placed using automated means, not manualdialing. However, because of the threat of class-action litigation, financial institutions arereluctant to contact those consumers for whom the institution does not have documented consentto call, depriving millions of consumers of important and time-sensitive COVID-19-relatedinformational messages.

Commissioner O’Rielly described the Petition as “[v]ery reasonable,” and urged theCommission to act with “urgency,” calling on the Commission to rule on the Petition prior to theclosing of the comment period. The Bureau expressed its support for including within theEmergency Purposes Exemption a limited number of financial institutions’ automated COVID-19-related calls that offer forbearance, payment deferrals, fee waivers, extension or relaxation ofrepayment terms, or loan modifications on loans secured by homes or vehicles. In a subsequentaction, the Bureau emphasized (in the context of open-end credit) the importance ofcommunications from financial institutions to consumers: “[o]pen end non-home securedcreditors may communicate proactively with consumers to provide helpful information andresources. . . . Communicating in advance with consumers, before they may encounterunexpected problems, may help educate them with respect to common problems and potentialresources to help solve such problems.”

Similarly, six consumer advocacy organizations led by the National Consumer Law Center(NCLC), “urge[d] the Commission . . . as expeditiously as possible” to exempt limited numbersof automated calls from financial institutions that offer forbearance, payment deferrals, feewaivers, extension or relaxation of repayment terms, or loan modifications on loans secured by homes or vehicles. Although assistance for borrowers facing hardship is widely available, theborrower must request the relief in a timely manner under the recently passed CARES Act.Financial institutions may wish to communicate with borrowers to advise them of the availablerelief. If the institution is not able to initiate communication, it could lead to a potentialforeclosure or other negative credit consequences. As mortgage lender Quicken Loans stated, bygranting the Petition, the Commission “would allow mortgage servicers to more effectively helpclients stay in their homes.” These letters demonstrate that it is critical that the Commissionexercise its authority to declare that financial institutions’ COVID-19-related calls and textmessages are exempt under the Emergency Purposes Exception.

Organizations that represent millions of American businesses also expressed support for thePetition. The U.S. Chamber of Commerce, which represents the interests of three millionbusinesses, “strongly supports” the Petition. The Electronic Transactions Association, whichrepresents over 500 companies that offer electronic transaction processing products and services,emphasized in its comment letter the importance of promoting fraud alerts during the COVID-19pandemic, observing that “bad actors and unscrupulous callers . . . have increased theirfraudulent and abusive practices” during the pandemic. Similarly, Visa stated that it has“observed that bad actors are increasing efforts to exploit coronavirus fears or steal relief fundsdirectly.”

The COVID-19 pandemic is having a devastating impact on the U.S. economy. By someestimates, nearly 20% of Americans are unemployed, which is twice the peak unemploymentrate (10%) during the Great Recession of 2007 to 2009. Nearly 39 million people have filed forunemployment benefits over the past nine weeks. Financial institutions continue to play acritical role in assisting consumers during this time and seek to place the calls and text messagesdescribed in the Petition — e.g., calls and texts to offer forbearance, payment deferrals, and otherloan modifications; to advise consumers of branch closings, reduced hours, or the availability ofremote banking options; and to warn consumers of potential fraud on the consumer’s account.For example, one bank would like to send text messages to advise customers that they may applyat the bank’s website for mortgage relief offered by the bank. A second bank has an interest inadvising customers of the bank’s programs to help customers with short-term cash needs ortrouble with making payments. A third bank would like to inform customers of assistanceavailable, such as waived payment requirements and branch closures.

A credit union reported that it is unable to send texts or place calls to its members regardingpayment solutions because of the extensive and time-consuming due diligence required tomitigate potential litigation exposure under the TCPA. This due diligence includes confirmingwhether the member’s number is wireline or wireless and determining whether the consentobtained from the member is sufficiently documented. The pandemic has further slowed thisreview process. The net result is less communication from the credit union to its members, whothemselves have expressed frustration that the credit union is using antiquated communicationstechnologies. It is imperative that financial institutions are able to call consumers to address theconsumer’s financial needs during the pandemic.

As the Associations asserted in the Petition and ABA stated in a separate ex parte filing,financial institutions’ calls and text messages to offer payment deferrals and other loanmodifications and to warn consumers of potential fraud on the consumer’s account protect andsupport consumers’ financial health and safety. Thus, these calls and texts clearly fall withinthe Emergency Purposes Exception. The Commission’s regulations, promulgated after notice-and-comment rulemaking, define the term “emergency purposes” to mean “calls made necessary in any situation affecting the health and safety of consumers.” If the Commission intended tolimit its definition of “emergency purposes” to calls protecting only the physical health andsafety of consumers, it easily could have done so by inserting the word “physical” into thedefinition. It chose not to do so. The Commission should not now narrow the definition of“emergency purposes” by limiting the relief it grants regarding the Petition. Moreover, an eventthat has a detrimental impact on a consumer’s financial health, such as foreclosure, adverselyeffects the consumer’s physical health.

The relief that the Associations request in the Petition would ensure that financial institutionsmay contact consumers with important, and time-sensitive, calls to protect the consumer’sfinancial or physical health and safety. We urge the Commission to grant the Petition withoutdelay.

Virginia O’Neill
Executive Vice President
American Bankers Association

Stephen Congdon
Assistant Vice President & Regulatory Counsel
Consumer Bankers Association

Michael Emancipator
Vice President
Independent Community Bankers of America

Carrie R. Hunt
Executive Vice President of Government Affairs & General Counsel
National Association of Federally-Insured Credit Unions

Celia Winslow
Senior Vice President
American Financial Services Association

Elizabeth Eurgubian
Deputy Chief Advocacy Officer & Senior Counsel
Credit Union National Association

Justin Wiseman
Managing Regulatory Counsel
Mortgage Bankers Association