NAFCU and other parties in a lawsuit related to "auto-dialed calls"—frequently referred to as "robocalls"—filed a brief challenging an FCC order drafted as part of the Telephone Consumer Protection Act's prohibition on such calls.
Separately, CUNA joined forces with the American Bankers Association and The Independent Community Bankers of America to file an amicus brief in the suit.
"We are pleased to submit our joint brief… in pursuing the litigation against the FCC to help protect credit unions' right to communicate with their members," said Carrie Hunt, NAFCU's senior vice president of government affairs and general counsel.
In July, the FCC released a ruling (in response to various long-standing petitions seeking clarifications of TCPA), which, among other things, did not make a distinction between legitimate businesses and scammers. One of the consequences of the order relates to the ability of telephone service providers to offer technology that blocks such "robocalls." The TCPA order also forbids the use of auto-dialing systems to call wireless phones and the transmission of pre-recorded messages on landline telephones without prior consent.
In its filing, the CUNA and associated parties, said that the FCC's orders "severely restrict the ability of financial institutions and other callers to engage in useful, and often urgent, communications with their customers or members."
The brief also warned that the "onerous and burdensome requirements" of the TCPA order may "force those entities that have limited staff and resources" to restrict wireless communications with consumers.
"The FCC's TCPA order is restricting important communications between credit unions and their members that can help prevent fraud, identify theft, and provide other important account updates," said Ryan Donovan, CUNA's chief advocacy officer. "We believe the FCC acted in a manner that is harmful to consumers, and is an abuse of the authority Congress granted to it. Surely when passing the TCPA decades ago, Congress did not have in mind to arbitrarily scrutinize and limit communications between credit unions, who are not-for-profit, member-owned financial cooperatives. We hope that the court will recognize the absurdity of some of the new requirements the FCC has outlined."
Donovan added that some of the financial institution exemptions in the order are so difficult to comply with that some smaller credit unions have viewed it as a "de facto ban" and have reverted to making manually dialed calls.
"The lack of clarity surrounding what exactly an auto-dialer is has left many credit unions unable to determine whether their calling device falls into the category of an auto-dialer, and whether they have to comply with the TCPA," Donovan told Credit Union Journal. "The commission's expansive interpretation of an auto-dialer effectively prohibits financial institutions from using many efficient dialing technologies unless the consumer's prior express consent has been obtained. As such, the lack of clarity has made it very difficult for credit unions to determine how to move forward until the court or the FCC provides much need clarity about this order."
NAFCU's Hunt noted one key concern is that the FCC order raises questions about what exactly constitutes "consent" and what does not in relation to calls that credit unions might make to members.
Along with NAFCU, other "intervenors" in the filing represent a broad range of entities, including Cavalry Portfolio Services LLC; Diversified Consultants Inc.; Mercantile Adjustment Bureau LLC; Council of American Survey Research Organizations and Marketing Research Association, among others.
