On November 6, 2014, the Federal Communications Commission (“FCC”) issued a Public Notice requesting comments on a petition by the American Bankers Association (“ABA”) to exempt informational calls and texts to mobile devices from the Telephone Consumer Protection Act’s (“TCPA”) prior consent requirements. The FCC specifically seeks comments on whether the exemptions requested in the ABA’s petition permit the financial industry to reduce privacy and security risks so that fraud, data security breaches, and identity theft are less likely to occur. The initial comments are due by December 8, 2014, and any reply comments must be submitted by December 22.
The ABA’s petition requests that the FCC use its authority to exempt four categories of informational calls or messages from TCPA’s consent requirements. The first category includes messages to protect consumers from fraud and identity theft. The second category covers data security breach notifications. Data breach notifications are a major communication issue for banks, and the Gramm-Leach-Bliley Act and most states require financial institutions to alert consumers if unauthorized access to the consumer’s personal information occurs. Remediation messages, the third category, are notices to consumers concerning measures a financial institution may take to mitigate identity theft following a breach, such as placing a fraud alert on a credit report. The fourth category – money transfer notifications – are the method by which financial institutions confirm to customers that they have received or sent money to another account.
The TCPA prohibits companies from using an automatic telephone dialing system or a prerecorded call to mobile devices without a consumer’s prior express consent. The ABA asks the FCC to use its power under Section 227(b)(2)(C) to grant an exemption to this rule if the call or text is made at no charge to the consumer. The FCC recently used its authority under Section 227(b)(2)(C) when it granted a request by the Cargo Airline Association (“CAA”) that the FCC exempt certain delivery notification calls to consumers’ mobile devices.