Earlier this week, the American Bankers Association (“ABA”) filed a Petition for Exemption with the Federal Communications Commission (“FCC”) requesting that financial institutions be permitted to transmit certain automated text and voice message calls to consumer’s mobile telephones without obtaining prior express written consent to do so.
The American Bankers Association Consumer Safety Notifications
The ABA is composed of small, regional and large banks, and constitutes the “voice of the nation’s $15 trillion banking industry.” Its petition was filed in response to the recent flood of TCPA class action lawsuits and the resulting impact of such lawsuits on the “willingness and ability of financial institutions to reach consumers’ mobile devices by automated means.” The concern stems from situations in which the financial institution’s customer provided his or her mobile telephone number to it, but later argues that he or she did not specifically consent to the receipt of specific alerts, such as fraud and identity theft text notifications.
As a result of the foregoing concerns, the ABA has petitioned for a Telephone Consumer Protection Act (“TCPA”) rule exemption to permit banks to transmit certain types of messages to customers through the use of an autodialer or artificial or prerecorded voice, specifically:
- Fraud and identity theft alerts;
- Data security breach notifications;
- Remediation messages (e.g., notices alerting customers of security measures to be taken following a data security breach, such as subscribing to credit monitoring services); and
- Money transfer notifications.
Arguments to Support the Requested TCPA Exemption
The ABA’s Petition indicates that it seeks relief similar to that granted by the FCC in its Order relating to the petition filed by the Cargo Airline Association (“CAA”). The CAA Order granted an exemption for a narrowly-defined category of informational messages that the FCC found would benefit consumers – those relating to package delivery alerts.
The ABA proposes that its members be granted an exemption for notices containing content that is strictly confined to non-telemarketing information (on a free-to-end-user basis), subject to reasonable conditions to protect customer privacy rights. The ABA’s Petition lists conditions similar to those included in the FCC’s CAA Order, particularly that:
- Automated messages subject to the exemption will be sent only to the telephone numbers of consumers to whom the alert is directed;
- Automated messages subject to the exemption will identify the name of the financial institution sending such messages and will include the sender’s contact information or reply instructions;
- Automated messages subject to the exemption will not contain any telemarketing, solicitation or advertising content;
- Automated messages subject to the exemption will be concise, generally one minute or less in length for voice calls (unless more time is required to obtain customer responses or answer customer questions), and no more than 160 characters in length for text messages;
- Financial institutions will send no more automated messages than are required to complete the communications’ intended purpose; and
- Recipients of money transfer notifications will have the opportunity to opt out of similar future communications.
It is doubtful that the ABA’s Petition will be decided anytime soon. The FCC issued its CAA Order a year and a half after the CAA submitted its petition, following public comment on the issues raised in the CAA petition and further comment on issues raised in a later CAA presentation.
The CAA ruling, however, was one of the first petitions that the FCC acted upon since its most recent TCPA regulatory changes went into effect on October 16, 2013. As it is a business- friendly ruling, those in the telemarketing industry are optimistic that it will signal more favorable guidance to come when the FCC rules on other TCPA petitions that are currently pending before it, including the instant ABA petition.