Pub. 4 2014 Issue 4

10 www.azbankers.org “Only automated calling—not manual dialing by live agents—can meet these requirements in a timely and effective manner. And, as wireless service continues to replace the wireline telephone as consumers’ communication method of choice, an increasing percent- age of those automated calls must be placed to mobile devices. As technol- ogy and consumer preferences change, regulation must adjust. The Commis- sion should seek to reduce rather than increase the burdens on automated customer communications. Specifically, the Commission should decline to adopt the proposed written consent require- ment for automated nonmarketing calls to the very wireless numbers that customers have voluntarily provided to the callers... Rather than impose new constraints on automated calling, the Commission should confirm that businesses may place automated calls to customers’ wireless contact numbers, and also should confirm that automated dialing technologies that do not gener- ate numbers randomly or sequentially are not automatic telephone dialing systems for purposes of the Telephone Consumer Protection Act.” F CC’S PETITION PROCESS TCPA compliance is not a one-way street, in the sense that the agency does provide means for companies and in- dustries to seek exceptions from TCPA coverage. Such petitions seek permission to make contacts for specific purposes and through specific mechanisms with- out prior consent. A number of such petitions have been considered, or are in process at the agency, and ABA has filed statements supporting such peti- tions. The Kennedy Privacy Law Firm’s eMarketing Newsletter recently pointed out that FCC has, thus far, declined to exempt any petitioner’s technology as outside the scope of its regulations, but that it has shown some flexibility in the matter of prior express consent. A notable petition was granted in March of this year in response to the Cargo Airline Association. The issue was text messages sent to recipients of packages (as opposed to a shipping com- pany’s customer). FCC ruled that such messages could be sent without prior consent, subject to certain conditions, notably that the texts’ costs be free to the end user. Another petition that was granted in March may help protect “person-to-per- son” text payments. This concerned a free group messaging service offered by GroupMe, Inc., that allowed individu- als in groups set up by GroupMe users to opt out from receiving additional contacts. Such petitions are limited in scope, though they can be helpful, according to the law firm’s newsletter. A pending matter is a petition from United Healthcare Services, Inc., seeking exception from liability for informational, nonmarketing messages to wireless numbers for which prior express consent was received, but which have changed hands since United was given the numbers. In supporting that petition in a March brief, ABA noted that banks could use similar protection. “Consumers who change their wire- less number should notify the businesses and organizations with whom they interact of the change; however, they often fail to do so. . . . If the petition is not granted, banks will face a dilemma: expose the organization to potential class-action litigation risk or curtail the use of informational calls to custom- ers.” w This article was written with the extensive assistance of ABA’s Virginia O’Neill, vice-president and assis- tant chief compliance counsel. Reprinted by permission from the June issue of ABA Banking Journal , copyright 2014 by the American Bankers Association. n Hear me now? — continued from page 9