WASHINGTON—What qualifies as an Automatic Telephone Dialing System? Only equipment that has the “capacity to dial numbers without human intervention,” according to a letter sent by NAFCU to the Federal Communications Commission (FCC).
Any equipment not being used as an ATDS should not be subject to prohibitions under the Telephone Consumer Protection Act (TCPA), NAFCU added.
CUNA has also filed a letter.
NAFCU Senior Regulatory Affairs Counsel Ann Kossachev offered the definition in response to the FCC's request for comments on various TCPA issues in light of the March decision from the U.S. Court of Appeals for the D.C. Circuit, which invalidated the FCC's definition of "autodialer" and rejected the commission's interpretation of when a caller violates the TCPA by calling a reassigned number.
In addition, Kossachev reiterated NAFCU's support for an FCC-designated reassigned numbers database as current third-party solutions "are incomplete and sometimes inaccurate." She also requested a safe harbor for those who utilize the database but inadvertently make a "good-faith" call to a number that has been reassigned.
Kossachev also highlighted the increased litigation risk related to revocation of consent and urged the FCC to use a standard that allows callers to define acceptable channels of revocation based on what is convenient for their systems and processing procedures.
"Oral revocation of consent is not ideal for credit unions because it causes confusion for employees and members alike," Kossachev wrote. "There are too many instances in which a consumer alleges to have orally revoked consent to be contacted yet there is no record of such consent and callers have not had the opportunity to incorporate the revocation into their systems."
Instead, Kossachev said credit unions would prefer revocation of consent be made in writing through either a signed document or opt-out method provided by the institution through a phone call or text message.
NAFCU has urged the FCC for more clarity and flexibility under the TCPA so credit unions can contact their members without fear of breaking the law.
CUNA’s Comment to FCC
In its letter to the FCC, CUNA asked the agency to define key statutory terms and identify methods to revoke consent.
“Defining key statutory terms such as an automatic telephone dialing systems (ATDS) and ‘called party’ and identifying reasonable methods to revoke consent consistent with the TCPA’s language and intent will substantially reduce uncertainty and help mitigate the onslaught of frivolous TCPA litigation,” the CUNA letter reads. “The commission should also use this opportunity to update antiquated distinctions between wireless and wireline calls when companies make informational calls to their customers or members, as requested in CUNA’s petition for declaratory ruling.”
The CUNA comment letter specifically urges the FCC to:
- Revise its reassigned number framework by defining the called party as the intended recipient
- Identify several revocation options that, if used by the consumer, would be sufficient to revoke prior consent. Conversely, failure to use those options would not be effective to revoke consent
- Grant the CUNA petition and eliminate antiquated distinctions between landline and cell phone informational calls