WASHINGTON—Oral arguments have concluded here in the case against the Federal Communications Commission’s order on Telephone Consumer Protection Act prohibitions on autodialed calls to account holders. The court could issue a decision at any time, reported NAFCU.
NAFCU and CUNA had representatives present for the oral arguments at the U.S. Court of Appeals for the D.C. Circuit. It had originally been expected to require 20 minutes for each side to make their cases; instead, arguments lasted more than two hours, said NAFCU, which is part of the lawsuit.
“We look forward to the resolution of this case,” said NAFCU Executive Vice President of Government Affairs and General Counsel Carrie Hunt, who attended the arguments. “The panel asked very insightful questions, and the length of the dialogue demonstrates the complexity of this issue.”
Along with Hunt, NAFCU Senior Regulatory Affairs Counsel Michael Emancipator and Senior Regulatory Compliance Counsel Elizabeth LaBerge attended the arguments.
NAFCU filed its motion to intervene in the suit September 2015 and joined the petition filed by the U.S. Chamber of Commerce seeking a review of the FCC order. The FCC order allows a narrow exemption for certain autodialed calls to address potential account fraud or identity theft. However, NAFCU has asserted that the order is too broad in its definition of what qualifies as an autodialer.
The association said it is concerned that FCC’s order on the TCPA has led credit unions to cease important communications with members about their accounts over fear of inadvertently violating the rule. NAFCU said it is participating in this litigation against the FCC “to help protect credit unions’ right to communicate with their members and preserve the institutions’ unfettered ability to alert members when necessary to protect their accounts and information.”
CUNA filed an amicus brief in the case, and Senior Directors of Advocacy and Counsel Leah Dempsey and Andy Price were in attendance Wednesday. CUNA reported that several discussions touched on concerns CUNA has raised with the TCPA order, including:
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The court appeared to take issue with the lack of clarity surrounding what could be considered an autodialer, asking questions about whether new technologies such as smartphones had the capacity to randomly or sequentially dial calls;
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The court questioned the FCC about what is considered a reasonable method of revoking consent. Petitioners argued that the order left the door open for individualized methods of revoking consent to be considered reasonable, which make it difficult for businesses to know exactly what protocols they need to have in place for receiving notice of a consumer revoking consent;
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The judges also questioned the new requirements for calling reassigned numbers that include a one-call safe harbor, which puts the caller on notice of the reassignment even if the call is not answered. They noted that an unanswered call is hardly notice that the number has been reassigned;
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A number of questions were posed about whether Congress, when enacting the TCPA more than two decades ago, could have anticipated the problems the order has caused for new technologies; and
- Counsel for the petitioner corrected FCC counsel’s claim that the order has not caused businesses to restrict communications, noting that community banks (which is also true for credit unions) have in some instances stopped texting consumers all together because of the lack of clarity in how to comply with the order.