On November 15, 2016, the Consumer and Governmental Affairs Bureau (CGB) released an order denying a request by the Mortgage Bankers Association (MBA) for an exemption of the prior-express-consent requirement of the TCPA for “mortgage servicing calls” to wireless phone numbers, such as calls to inform borrowers of their options should they become delinquent or default on their mortgages. MBA argued that the exemption was “necessary to ensure that the TCPA does not restrict mandated, timely communications with residential mortgage borrowers that are required by other federal and state laws or regulations.”
CGB used the following three-part test to analyze MBA’s request: (1) whether the messages would be free to the end user; (2) whether the messages are time-sensitive or if there is some other compelling public interest to support the exemption; and (3) whether the caller could apply conditions to the exemption. After reviewing each of these factors, CGB denied the exemption request. First, CGB stated that MBA did not clearly establish in its petition that the calls covered by the exemption would not be charged to the called party (i.e. they would not count against any plan limits on the consumer’s voice minutes or texts). Second, CGB determined that mortgage servicing calls are not time-sensitive because the statutes that mandate them typically “do not require telephone contact until a borrower is at least 20 to 36 days into the delinquency period.” The decision further noted that, unlike calls to notify consumers about potentially fraudulent transactions or identity theft, there is no compelling public interest that would warrant an exemption to the prior-express-consent requirement. CGB did not directly address whether MBA’s proposed conditions on exempted calls would be sufficient.
Interestingly, the order observes that “mortgage servicers are free to autodial consumers without an exemption by simply relying on the prior express consent a consumer provides when including their wireless phone number on a mortgage application” or that they could “obtain new consent by one of many available means, including by email.” Similar to other decisions on requests for prior-express-consent exemptions, the order further posits that callers could avoid the requirement altogether by taking the arduous step of placing mortgage servicing calls without using autodialer technology.