Before the FEDERAL COMMUNICATIONS COMMISSION Washington ...

[Pages:23]Before the FEDERAL COMMUNICATIONS COMMISSION

Washington, DC 20554

In the Matter of

)

)

Petition for Expedited Declaratory Ruling,

)

Clarification, or Waiver of the American

)

Bankers Association, 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 )

)

Rules and Regulations Implementing the

)

Telephone Consumer Protection Act of 1991 )

CG Docket No. 02-278

PETITION FOR EXPEDITED DECLARATORY RULING, CLARIFICATION, OR WAIVER OF THE AMERICAN BANKERS ASSOCIATION, 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

Virginia O'Neill Executive Vice President American Bankers Association 1120 Connecticut Avenue, N.W. Washington, DC 20036 (202) 663-5073

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March 30, 2020

Celia Winslow Senior Vice President American Financial Services Association 919 18th Street, NW Washington, DC 20006 (202) 776-7300

Stephen Congdon Assistant Vice President, Regulatory Counsel Consumer Bankers Association 1225 New York Avenue, NW, Suite 1100 Washington, D.C. 20005 (202) 552-6381

Elizabeth Eurgubian Deputy Chief Advocacy Officer & Senior Counsel Credit Union National Association 99 M Street, SE Suite 300 Washington, DC 20003 (202) 465-5769

Michael Emancipator Vice President Independent Community Bankers of America 1615 L Street, N.W. Washington, DC 20036 (202) 659-8111

Justin Wiseman Managing Regulatory Counsel Mortgage Bankers Association 1919 M Street, NW Washington DC 20036 (202) 557-2854

Carrie R. Hunt Executive Vice President of Government Affairs and General Counsel National Association of Federally-Insured Credit Unions 3138 10th Street North Arlington, VA 22201 (703) 842-2234

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TABLE OF CONTENTS

SUMMARY

4

PETITION FOR EXPEDITED DECLARATORY RULING,

8

CLARIFICATION, OR WAIVER OF THE AMERICAN BANKERS

ASSOCIATION, 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

CONCLUSION

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APPENDIX

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SUMMARY The American Bankers Association (ABA), American Financial Services Association (AFSA), Consumer Bankers Association (CBA), Credit Union National Association (CUNA), Independent Community Bankers of America (ICBA), Mortgage Bankers Association (MBA), and National Association of Federally-Insured Credit Unions (NAFCU)1 (collectively, the Associations) request an expedited declaratory ruling, clarification, or waiver stating that phone calls and text messages placed by banks, credit unions, and other customer-facing financial services providers (collectively, financial institutions) 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 thus may be placed without the consent of the called party, pursuant to 47 U.S.C. ? 227(b)(1)(A) (Emergency Purposes Exception, or Exception). Specifically, these phone calls and text messages (collectively, calls) may include outreach to customers and members (hereinafter referred to collectively, as consumers) 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. The calls that the Associations seek to place under the Emergency Purposes Exception are solely

1 A description of each trade association is provided in the Appendix. 4

informational calls made in good faith to assist consumers and do not include calls that contain advertising or telemarketing or seek to collect payment on a debt.2 These timesensitive calls must be placed using automated means. Manual dialing does not achieve timely notification of consumers.

Federal Communications Commission (Commission) regulations implementing the Telephone Consumer Protection Act (TCPA) provide that the Emergency Purposes Exception exempts "calls made necessary in any situation affecting the health and safety of consumers."3 On March 20, 2020, the Commission confirmed that the "COVID-19 pandemic constitutes an `emergency'" under the TCPA.4 The calls that banks, credit unions, and other customer-facing financial institutions seek to place on matters related to the pandemic are intended to protect or support the financial health or safety of consumers. Calls that advise consumers of branch closings, service limitations, reduced hours, or the availability of remote banking and other remote customer service options protect the physical health or safety of consumers and employees, by preventing unnecessary physical contact between consumers and employees. As such, these calls related to COVID-19 clearly fall within the Emergency Purposes Exception.

2 As described more fully in the Petition, these calls are made in response to the extraordinary circumstances necessitated by the shelter-in-place orders and self-isolation imposed by governments or as voluntary self-protection measures, particularly for the elderly or those with underlying conditions that may make them particularly susceptible to the virus, and they are not intended as marketing initiatives. 3 47 C.F.R. ? 64.1200(f)(4) (2019). 4 Declaratory Ruling, Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02-278, at 1 (Mar. 20, 2020), [hereinafter March 20, 2020, Declaratory Ruling].

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However, neither the Commission nor the judiciary has addressed the application

of the Exception in the context of calls placed by financial institutions during a public

health emergency. The lack of Commission and judicial precedent and the threat of class-

action litigation may lead financial institutions to limit the communications they send to

assist consumers on matters related to the pandemic. This result would thwart the

directives issued by the Bureau of Consumer Financial Protection (Bureau) and the Federal banking agencies that financial institutions should work "constructively"5 and "prudently"6 with consumers impacted directly or indirectly by COVID-19. Constructive

engagement with consumers is best achieved by proactive outreach communication by

the institution through phone calls and text messages.

The Associations urge the Commission to ensure that these communications may

be freely made by confirming that calls and text messages placed by financial institutions

related to COVID-19 are calls made for emergency purposes, or by granting a temporary

5 Bd. of Governors of the Fed. Reserve Sys. et al., Agencies Encourage Financial Institutions to Meet Financial Needs of Customers and Members Affected by Coronavirus 1 (Mar. 9, 2020), [hereinafter, March 9, 2020, Interagency Statement] (statement by Board of Governors of the Federal Reserve System (Federal Reserve), Bureau, Federal Deposit Insurance Corporation (FDIC), National Credit Union Administration (NCUA), Office of the Comptroller of the Currency (OCC), and Conference of State Bank Supervisors (CSBS)). 6 Bd. of Governors of the Fed. Reserve Sys. et al., Interagency Statement on Loan Modifications and Reporting for Financial Institutions Working with Customers Affected by the Coronavirus 1 (Mar. 22, 2020), [hereinafter, March 22, 2020, Interagency Statement] (statement by Federal Reserve, FDIC, NCUA, OCC, Bureau, and CSBS).

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waiver of the Commission's definition of "emergency purposes," adopted through regulation,7 to allow these calls related to this national emergency.

7 Report and Order, Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CC Docket No. 92-90, 7 FCC Rcd 8752, 8791 (1992).

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Before the FEDERAL COMMUNICATIONS COMMISSION

Washington, DC 20554

In the Matter of

)

)

Petition for Expedited Declaratory Ruling,

)

Clarification, or Waiver of the American

)

Bankers Association, 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 )

)

Rules and Regulations Implementing the

)

Telephone Consumer Protection Act of 1991 )

CG Docket No. 02-278

PETITION FOR EXPEDITED DECLARATORY RULING, CLARIFICATION, OR WAIVER OF THE AMERICAN BANKERS ASSOCIATION, 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

The TCPA prohibits, with limited exceptions, calls placed with an autodialer or prerecorded or artificial voice without the prior express consent of the called party.8 The TCPA exempts from that consent requirement a "call made for emergency purposes."9

8 47 U.S.C. ? 227 (2018). 9 Id. ? 227(b)(1)(A).

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