Are You Complying With These Two Acronyms?

November 6, 2017 at 9:09 am Leave a comment

The CU Times is reporting this morning that the number of ADA website compliance lawsuits filed against credit unions has more than doubled in the last month to at least 23 and is likely to grow even more in the coming weeks. It’s good that credit unions are paying attention to these lawsuits but I’m afraid that the industry is in danger of shifting from neglectful indifference to an unproductive frenzy when it comes to reacting to this litigation.

In contrast, today is the final day to submit initial comments in support of CUNA’s petition to the Federal Communications Commission, requesting that credit unions be given greater flexibility to contact their members on their cell phones without fear of violating the increasingly confusing requirements of the Telephone Consumer Protection Act (TCPA).

The ADA has gotten the lion’s share of attention in this battle of the acronyms. This makes sense in the short-term since, unlike the TCPA, every credit union with a website could potentially be sued. But in the medium to long-term it’s actually the TCPA proposal from which credit unions have the most at stake. Here’s why:

First, the crux of the ADA lawsuits is that websites are public accommodations which must be accessible to disabled persons such as the visually impaired. The lawsuits claim credit unions can comply with these reasonable accommodation requirements by ensuring that their websites satisfy the requirements of the World Wide Web Consortium. This sounds like a big deal but it’s time for everyone to take a deep breath. First, there is a good chance that, depending on the age of your software, you may find that your ability to comply with these requirements is already embedded in your system.

Second, in a worst case scenario, if a credit union finds itself facing an exorbitant cost to satisfy these lawsuits, it could always argue that compliance measures would cause it an undue burden.

Third, we are still dealing with an evolving area of the law. It’s possible that clear-cut guidance will ultimately preempt many of these lawsuits. In short, I firmly believe that we will look back in a year or two from now and realize that complying with the ADA was not a big deal.

In contrast, the TCPA is an absolute mess and getting worse by the day. It is a fast growing area of consumer law litigation that threatens to make it difficult to communicate with our members using this cutting edge piece of technology called a cell phone.

CUNA’s petition would exempt from TCPA liability informational calls made by credit unions to their members’ wireless numbers, so long as such communications are either made to a wireless subscriber with whom the credit union has an established business relationship or, alternatively, the subscriber is not charged for the call under the subscriber’s wireless plan.

Trust me, even if your credit union doesn’t come within the jurisdiction of the TCPA today, it will in the near future. Mass marketing and auto dialing used to be limited to huge companies and banks. Today, even the smallest credit unions can afford technology which makes them subject to the TCPA and its trip wires. The problem is that whereas the ADA has no statutory damage provisions, the TCPA does. This means that whereas two firms are bringing most of the ADA lawsuits according to the CU Times, I would bet you that there are dozens of firms seeking to start TCPA class actions.



Entry filed under: Compliance, Legal Watch, Regulatory. Tags: , .

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Authored By:

Henry Meier, Esq., Senior Vice President, General Counsel, New York Credit Union Association.

The views Henry expresses are Henry’s alone and do not necessarily reflect the views of the Association. In addition, although Henry strives to give his readers useful and accurate information on a broad range of subjects, many of which involve legal disputes, his views are not a substitute for legal advise from retained counsel.

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