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TCPA Regulatory Update — Financial Institutions Seek Same Treatment as Healthcare Providers to Send COVID-19–Related Messages Without Prior Express Consent

Financial Institutions Seek Same Treatment as Healthcare Providers to Send COVID-19–Related Messages Without Prior Express Consent

As we reported in our March 23 Alert, the FCC released a Declaratory Ruling clarifying that the COVID-19 pandemic qualifies as an “emergency” under the TCPA’s emergency purposes exception, and that hospitals, health care providers, state or local health officials, and other government officials may make calls or send text messages that are solely informational and related to the imminent health or safety risks arising out of the COVID-19 outbreak without first getting the prior express consent of the called party. The FCC’s ruling was narrow, however, applying only to health care providers and government officials — it did nothing to exempt informational COVID-19–related texts by other entities from the TCPA’s prior express consent requirements.

Following up on this Declaratory Ruling, the American Bankers Association and numerous other financial associations filed a Petition for Expedited Declaratory Ruling, Clarification or Waiver seeking similar treatment for financial institutions. Specifically, they asked the FCC to find that calls or texts placed by banks, credit unions, and other customer-facing financial service providers using an automatic telephone dialing system or prerecorded or artificial voice on matters relating to the COVID-19 pandemic are calls made for “emergency purposes” under the TCPA, and thus, do not require the prior express consent of the called party. Examples of calls that the financial associations assert should fall under the emergency purposes exception include calls and text messages reaching out to customers “to offer payment deferrals, fee waivers, extension of repayment terms, or other delays in payment, modification, or forbearance on mortgage payments or other loans; to advise consumers of branch closings, service limitations, reduced hours, or the availability of remote banking or other remote access options; to warn consumers of potential fraud on the consumer’s account; or otherwise to make consumers aware of programs, relief, and resources offered by the institution in response to the pandemic.” They explain that these calls would be solely informational and made in good faith to assist consumers, and would not include telemarketing or seek to collect payment on a debt.

The FCC released a Public Notice soliciting comment on the Petition, with comments and reply comments due on May 6 and May 21, respectively. A coalition of consumer advocacy organizations has already written to the FCC supporting the Petition for the limited purposes specified by the Petitioners and urged the FCC to grant the Petition, along with conditions explicitly prohibiting debt collection and telemarketing calls and instituting a limit on the number of automated calls permitted and a requirement that they be concise.

FCC Adopts STIR/SHAKEN Mandate, Seeks Comment on Related Implementation Issues 

At its March Open Meeting, the FCC unanimously adopted the Report and Order and Further Notice of Proposed Rulemaking mandating STIR/SHAKEN and proposing additional measures to combat illegal spoofing, which we summarized in last month's TCPA Digest. Some stakeholders voiced concerns that the FNPRM’s proposal to permit voice service providers to display STIR/SHAKEN authentication information to called parties before all carriers have implemented STIR/SHAKEN could have unintended anticompetitive consequences. In response, the FCC added a new section to the FNPRM seeking comment on potential competition issues stemming from call labeling and asking whether existing antitrust law is sufficient to address these issues.

Comments and replies on the Report and Order and Further Notice of Proposed Rulemaking are due May 15 and May 29, respectively.

FCC Confirms Repeal of Solicited Fax Rule

The FCC released an Order confirming the Consumer and Governmental Affairs Bureau’s (Bureau) 2018 decision to eliminate the Solicited Fax Rule, in response to the D.C. Circuit’s 2017 holding that the FCC had exceeded its statutory authority under the TCPA in adopting the Solicited Fax Rule in the first place. Although a group of TCPA plaintiffs involved in the litigation filed an application for review of the Bureau’s decision to eliminate the rule, the FCC confirmed its decision and declared as moot similar applications and petitions for review. The Solicited Fax Rule was adopted as part of the FCC’s attempts to conform its TCPA rules related to fax advertising with the 2005 Junk Fax Prevention Act, and required senders of faxes to include opt-out notices on solicited fax ads, (i.e., those sent with the recipient’s “prior express invitation or permission.”).


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Russell H. Fox is a wireless communications attorney at Mintz. He guides clients through federal legislative, regulatory, and transactional matters. Russell also participates in FCC proceedings, negotiates spectrum agreements, and represents clients in spectrum auctions.