Financial Services Providers, Take Note: TCPA Background and Pointers

More and more companies are defending lawsuits brought under the Telephone Consumer Protection Act (TCPA). Businesses that communicate with customers by phone or text using an automated telephone system should take a look at this recent JD Supra Business Advisor article that provides helpful background information on the TCPA, including the following:

Enacted in 1991 to protect consumers from receiving unsolicited telemarketing calls and faxes, the TCPA regulates and restricts the manner in which a business may advertise its products and services to consumers’ cell phones (including via text), residential phone lines, and fax machines. Among other things, the TCPA prohibits the use of an “automated telephone dialing system” or an “artificial or prerecorded voice” to make calls to cell phones without the prior express consent of the called party. This rule applies to both telemarketing calls and non-telemarketing calls, including debt collection or informational calls. Following a change in TCPA regulations that took effect in October 2013, written consent is now required for most automated telemarketing communications.

The article also provides a tailored look at how the TCPA plays out for businesses in the financial services industry:

Of particular significance for companies in the financial services industry, in 2008 the Federal Communications Commission (FCC) found that in the context of a creditor-debtor relationship, a customer is deemed to have provided prior express consent for collection calls when the consumer provided the creditor with his or her number “during the transaction that resulted in the debt owed.” The 2008 FCC Ruling explained that “the provision of a cell phone number to a creditor, e.g., as part of a credit application, reasonably evidences prior express consent by the cell phone subscriber to be contacted at that number regarding the debt.” Creditors bear the burden of proving that such consent was obtained.

Banking Industry, Legislation Affecting Class Litigation