Back in October, the American Bankers Association petitioned the FCC [PDF] for certain exemptions from the TCPA that would allow banks to make certain robocalls to consumers who haven’t given their consent.
Specifically, the ABA is seeking exemptions in four circumstances:
1. To contact consumers about possible fraud or identity theft;
2. To alert consumers of that their personal information may have been breached;
3. To advise consumers on steps they can take to prevent or remedy harm caused by data breaches;
4. To let a customer know of actions needed to arrange for receipt of pending money transfers.
“ABA members strive to make these notifications quickly and efficiently,” reads the petition. “Financial institutions have found that automated communications are best suited to achieve these goals.”
The banks believe that they should be allowed to make these robocalls and texts so long as consumers are not charged for the contact.
But the National Consumer Law Center and several other advocacy groups — Public Citizen, U.S. Public Interest Research Group, Consumer Federation of America, Americans for Financial Reform, and the National Association of Consumer Advocates — have asked the FCC to deny the ABA petition.
In their response [PDF] to the ABA petition, the groups first point out that while the ABA contends that these robocalls would be made without any cost to the recipient, the banks have not yet demonstrated or explained how they could guarantee that these calls would not impact recipients’ phone bills. For that reason alone, argue the groups, the ABA fails to qualify for a TCPA exemption.
But even if the ABA could demonstrate that every single robocall would be made at no expense to the recipient, the advocacy groups take issue with the contention that the message categories are so urgent as to be exempted from the anti-robocall rules.
The NCLC argues that these situations are precisely why the prior consent rule was put into place.
“The banks can inform their customers of the availability of these services, and if they consumers agree that they desire these services they will consent to receive the messages,” reads the response to the petition. “The fact that the messages may be valuable for consumers is a reason that they may wish to consent, not a reason to eliminate the consent requirement. If these messages are important and consumers have not consented to receive them, ABA’s members should take the time to pick up the phone and speak with affected consumers directly, or send and e-mail or a letter.”
To justify the exemptions, say the advocates, the banks must demonstrate that automated calls serve consumer interests more than calls from live operators.
After all, speaking to a real person would (A) guarantee that the message is received, and (B) prevent repeated calls to wrong numbers.
Speaking of which, that brings us to the second TCPA-related petition from the banking industry.
In September, the Consumer Bankers Association petitioned [PDF] the FCC to clarify that’s it’s okay to robocall the wrong number so long as you don’t intend to.
The CBA says that the ability to reassign wireless phone numbers puts businesses in a bad spot when placing robocalls. A bank may have had permission to robocall a number when it belonged to Jill, but when that number eventually ends up in Jack’s hands, they may no longer have permission for the automated message.
“As reassigned number litigation escalates, unreasonably affected parties and overburdened courts now need guidance to identify which party can properly provide prior express consent,” wrote the CBA.
Once again, the NCLC and the advocacy groups — this time joined by our colleagues at Consumers Union — responded [PDF], claiming that banks are seeking a rule change to justify their lazy business practices.
“Companies take for granted that they should be able to call consumers using an autodialer or artificial/prerecorded voice technology,” reads the response, “whether their customers or other consumers actually want the calls or not.”
The advocates point to the CBA’s own claims that it’s impracticable and too costly to manually dial numbers and/or have a real operator instead of a prerecorded message. It is the banking industry’s refusal to use measures that would prevent “wrong number” calls that is leading to complaints and lawsuits, argues the response.
“Frequently, the ‘informational, non-telemarketing’ calls that the CBA promotes are simply a pretext for telemarketing,” contend the advocates. “Frequently, prerecorded voice calls fail to provide any mechanism to opt out or notify the caller that it is calling the wrong person. And frequently, consumers’ do-not-call requests and notifications that a wrong number is being called are completely ignored.”
The NCLC is now calling on the FCC to just say no to more robocalling.
“We hope that the FCC will resist the pressure from business and industry trade groups to weaken rules that prevent robocalls to cell phones without consent,” says NCLC counsel Margot Saunders. “Repeated unauthorized calls and texts to consumers’ cellphones invade privacy and cost money by using their precious minutes or limited text allowances.”
Adds Ellen Taverna, Legislative Director of the National Association of Consumer Advocates, “Maintaining strong protections against these calls creates incentives for the industry to develop methods to avoid harassing people who have not agreed to be called on their cellphones.”