By: Marty Stern, Doug Bonner and Rebecca Jacobs
The FCC’s Consumer and Governmental Affairs Bureau recently denied a petition from the Mortgage Bankers Association for an exemption from the prior express consent requirement for autodialed calls and texts to wireless numbers under the TCPA. The requested exemption would have covered mortgage servicing calls, such as delinquency notifications, calls regarding missing documentation, and inquiries regarding whether the property had been abandoned or vacated. In denying the requested exemption, the Bureau reasoned that the petition failed to demonstrate either that the calls would be made at no charge to the recipient, or that there was an exigency or immediate need for the calls sufficient to justify the exemption and what the Bureau viewed as the intrusion to the customer’s privacy from such calls. The Bureau contrasted its decision here with the exemption granted to the American Bankers Association in the Commission’s 2015 TCPA Declaratory Ruling, in cases regarding fraudulent transactions involving a customer’s account, or identity theft. The Bureau’s decision on the Mortgage Bankers Association petition is also in contrast to the recent Commission Declaratory Ruling granting petitions from Blackboard and Edison Electric Institute, which allowed certain autodialed school-related and utility calls and texts to wireless numbers, where the called party had previously provided his or her wireless number.
The D.C. Circuit recently heard oral argument on petitions for review of the FCC’s 2015 TCPA Declaratory Ruling, which, among other things included controversial findings on the definition of an autodialer and a caller’s obligation to cease autodialing reassigned numbers after one call, and decision is expected by year-end.