The election of a new administration along with leadership changes at the Federal Communications Commission (FCC) provided new hope for a broad group of industry and nonprofit organizations who have long been advocating for changes to the Telephone Consumer Protection Act (TCPA). The TCPA reform effort is expected to commence after the United States Court of Appeals for the District of Columbia rules on the challenge (led by ACA International - the Association of Credit and Collection Professionals - and others) to the FCC’s July 2015 Declaratory Ruling and Order.
The FCC’s 2015 action is viewed by many as creating additional uncertainty in an area that has witnessed the chilling of the use of modern communications technology. Nearly 14 months ago, the DC Circuit Court heard oral arguments on this case. I have spoken to legal experts who have reviewed hundreds of DC Circuit cases and they all assert that the timing for a decision in the FCC 2015 Declaratory Ruling appeal is months overdue. And yet we continue to wait.
For those who may need some added context, I detailed some of the challenges with the TCPA and the FCC 2015 Declaratory Ruling in a past blog post. Most recently, in an April 2017 post, I briefly discussed the prospects for TCPA reform. It is expected that once the DC Circuit Court issues its decision it will provide a roadmap for those areas that still need further action by the FCC. So what is happening in the interim while we wait for the court to act? There are some recent TCPA-related developments that merit some attention.
TCPA Reform - FCC Explores the Creation of a Reassigned Number Database
On July 13, 2017, the FCC issued a Notice of Inquiry (NOI) to explore the creation of a database to share reassigned number information with callers. This has been one of the most problematic TCPA-related issues. Organizations, even after receiving opt-in consent from their customers, face the threat of class action lawsuits when, for example, text messages are sent to a customer whose cellphone number now belongs to another individual. Reassigned mobile numbers are not isolated incidents. The NOI indicated that 100,000 numbers are reassigned by wireless carriers every day. In response to the NOI, industry emphasized that a new database should not take the place of revising current TCPA interpretations. However, should the FCC move forward with a reassigned number database among the key points raised was the importance of having the database serve as a safe harbor for callers and that providers make updates in as real time as possible. The FCC is still in the process of reviewing comments.Another Related Reform Effort - Taking Steps to Address the Problem of Illegal Robocalls
Last month, the FCC adopted an Order and Report to authorize voice service providers (e.g., phone companies) to block certain categories of “spoofed” calls that are highly likely to be unlawful. The action reflects an effort to target illegal robocalls. The Order and Report specifies that phone companies may block spoofed calls when the subscriber of the spoofed number requests it, as well as permit phone companies to block calls from certain categories of spoofed numbers in which the FCC sees no legitimate, lawful purpose for spoofing. Such calls include invalid numbers, like those with area codes that don’t exist, valid numbers that are not allocated, and valid numbers that are allocated but not assigned. In a related development, the FCC Order and Report included a Notice of Proposed Rulemaking outlining potential mechanisms to ensure that calls made by banks and other businesses that are erroneously blocked by telephone service providers can be unblocked in a timely manner. All of us dislike unwanted robocalls and these actions appear to be narrowly targeted to address this persistent problem.FICO’s Latest Survey Findings on Customer Communication Preferences
FICO recently released findings of a survey of customer sentiments related to creditor communications. Among the key findings included:- A third of respondents said they prefer SMS late payment reminders but only less than 15 percent of respondents receive one.
- Lenders should clearly understand the functions and limitations of their mobile strategy. For example, mobile apps are still not consumers’ preferred method of making late payments (12 percent), despite the popularity of SMS as reminders.
- In addition, calls from human agents continue to be important for some borrowers. More than a quarter (27 percent) of the respondents said they are more likely to respond to a live contact regarding a late payment than even a restructuring or reduction of their debt (8 percent).
The Promise of More Action to Come
As we wait (and wait) for the DC Circuit Court to issue its decision, it is clear that there are TCPA-related issues that need to be addressed. Illegal robocalls continue to be a nuisance and the FCC and policy leaders need to continue to tackle this problem. When it comes to TCPA reform efforts, much needed revisions to the FCC’s current interpretations of certain areas of the law should not be simply dismissed as attempts to water-down the aim of the statute. Changes that would permit more flexible delivery of non-marketing communications, desired and requested by consumers, are a win for customers and businesses alike. We should find ways to remove barriers that are preventing customers from receiving important messages via their mobile phones. I am still optimistic that meaningful change can be achieved in this area in 2018. So does anyone have a crystal ball I can borrow that can shed light on the DC Circuit Court’s plans?
