CBA Comment Letter on Interpretation of the TCPA in Light of the D.C. Circuit’s ACA International Decision

June 13, 2018


VIA Electronic Submission

Ms. Marlene H. Dortch, Secretary

Federal Communications Commission

44 12th Street SW

Washington, D.C., 20554


Re: Comments on Interpretation of the Telephone Consumer Protection Act in Light of the D.C. Circuit’s ACA International Decision, CG Docket No. 18-152.


Dear Ms. Dortch,


The Consumer Bankers Association (“CBA”) appreciates the opportunity to respond to the Federal Communication Commission’s (“Commission”) Public Notice regarding the Interpretation of the Telephone Consumer Protection Act in Light of the D.C. Circuit’s ACA International Decision, CG Docket No. 18-152. As a co-petitioner in ACA’s suit with the Commission, we remain vigilant in our pursuit of better laws built to protect the necessary and desired communications our members make on a daily basis, and appreciate the Commission’s continued efforts on this front.


CBA Members’ customers utilize many useful communications through calls and text messages, ranging from low balance notifications to repayment counseling, among other important notices and alerts. CBA’s members communicate with their customers to enhance their customers’ financial well-being, while helping customers avoid financial crimes and hardship. CBA members seek to better serve their customers in every way possible, and more effective means of communication is a key part of enhancing that relationship.


In 1991, when wireless phones were considered a luxury item, and smartphones were years beyond invention, the Telephone Consumer Protection Act (“TCPA”) was enacted to address certain telemarketing practices considered an invasion of consumer privacy, as well as certain automated calls to wireless phones. Today, 90% of Americans own wireless telephones, and 58.8% of households are mostly or entirely wireless-only. While consumer preferences have changed, the 2015 Omnibus Order made it harder – and more expensive – for businesses to contact their customers.


In response to the Commission’s 2015 Omnibus Order, CBA, along with other petitioners, filed suit to challenge many of the issues the Commission is examining in this Public Notice, including the definition of an Automatic Telephone Dialing System (“ATDS”), issues surrounding reassigned numbers, and revocation of consent.


In light of the D.C. District Court of Appeal’s decision in ACA International v. FCC, the Commission has great opportunity to help address many of the concerns consumers and businesses alike have with the arduous TCPA rules. While we value this opportunity, CBA notes that the original purpose of the TCPA, to curb telemarketing calls and unwanted communications to unwilling consumers, is upheld. To this end, CBA recommends the Commission consider the items herein.


Re-Defining “Capacity” of an “Automatic Telephone Dialing System”


Under the TCPA, confusion exists around what exactly constitutes an ATDS, leading to a significant increase in lawsuits surrounding calls made to customer-provided numbers. CBA, along with other petitioners, asked the Commission to provide clarity on what constituted an ATDS in 2014, however the Commission’s 2015 Omnibus Order created more confusion over the issue by expanding the definition of an ATDS.


The Commission’s overly broad interpretation of the term “capacity” of an ATDS lead to a reading that not only included devices that randomly and sequentially dial random numbers, but also devices that do not currently have the capability, but may have the capability in the future. In addition, the broad definition of an ATDS has led to many financial institutions decoupling even their most basic computer-to-telephony (“CTI”) technologies. This prevents institutions from linking the customer contact phone number on record to the actual number that is dialed by forcing a manual match and dialing of all ten digits of the number. This, in turn, increases the chance of misdialed phone numbers caused by human error. The overly broad reading of “capacity” has led to a major explosion in litigation surrounding the issue, and chilled many of the important communications our member’s customers desire.


Read full comment letter here.