Posts tagged ‘robocalls’

Why This TCPA Case Matters To Your Credit Union

The Supreme Court yesterday heard a case challenging the constitutionality of the Telephone Consumer Protection Act (TCPA). If press reports are accurate, the justices seem as confused about the TCPA as every business and credit union that has struggled with its restrictions. It’s possible, just possible, that this case will result in giving you more flexibility to reach out to your members.

The TCPA generally prohibits businesses from calling, emailing or texting consumers using auto-dialers without first getting their permission. The statute contains an exception however for calls involving the collection of federal loans. For example, the statute doesn’t bar lenders from pestering former students with robocalls about repaying their delinquent college loans. In addition, as I have explained in many a blog, the statute not only applies to robocalls but to any call made using a system capable of making robocalls.

In Barr v. American Association of Political Consultants Inc. the Association argues that these exceptions demonstrate that the statute violates the First Amendment since its restrictions are based on the content of the robocaller’s message. A lower court agreed but refused to strike down the entire statute. Instead, that court eliminated the exception in the statute that allows Federal debt collectors to make unsolicited phone calls. In the case before the Supreme Court, the consultants are asking the court to confirm that the statute violates the First Amendment. According to the Court watchers, most justices seem inclined to agree that the statute violates the First Amendment.

The exciting part for our purposes (yes I get excited easily) is that the Court may find that its only remedy is to strike down the statute in its entirety. This is no minor issue. The TCPA has become the single most litigated consumer protection law in the country. Its broad interpretation has exposed many a credit union to a potential class action lawsuits and made it more difficult than it should be for the industry to reach out to its members.


May 7, 2020 at 9:55 am 1 comment

Previewing What Promises To Be A Wacky Week

To understand the New York State legislature in the closing week-and-a-half of the legislative session, you should think back to your school days. Deadlines which seemed to be in the distant future suddenly arrive and all that work you swore you had already done needs a lot of fine tuning. Get ready for the late nights.

So it goes for the legislative session this week as the legislature continues to consider a wide variety of bills that could impact your credit union operations. I will try to keep you posted as things unfold.

One of the bills I’ll be keeping an eye on, which has gotten the attention of the New York Law Journal, would effectively reverse regulations promulgated by the Department of Financial Services placing strict new limits on the marketing activities of title insurers in the Empire State.

Another reason this promises to be a wacky week is that economists, politicians, Presidents, candidates and talking heads of all political persuasions will continue to extrapolate prognostications about the future of the economy. If the economy does end up slipping into recession marking an end to one of the longest economic expansions in history then Friday’s job report in which an underwhelming 75,000 new jobs were created will be seen as a key moment.

Similarly, we have seen a dramatic decrease in bond yields as investors run for the safer cover of bonds. It will be interesting to see where and when this trend ends. It will also be interesting to see if and when quickly the fed decides that it needs to cut interest rates. Obviously all of this has an impact on your net interest margins.

This week will also give us more time to analyze how best to regulate payday lending. On Thursday the CFPB took the unusual step of providing a red line version of its regulations while announcing that it was delaying the date by which lenders had to comply with payday lending regulations.

I am also curious to find out if the FCC faces additional pushback now that it has rushed through regulations making it easier for telephone companies to block “robocalls.” I put robocalls in quotes because no one really knows what exactly will be blocked now that this regulation has been promulgated. This article in the WSJ summarizes the frustration that so many of us feel when trying to explain to people why the FCC’s action makes no sense. “America’s telecommunications regulator passed rules last week that will let phone companies automatically block more robocalls. It hasn’t yet said what, exactly, constitutes such a call.” That’s right. The regulation actually doesn’t ban robocalls. It bans calls made with equipment that can make robocalls.

This has the look and feel of a regulation that needs to be challenged on the grounds that the regulators have violated the Administrative Procedures Act. Perhaps we will see that happen this week as well.

June 10, 2019 at 9:16 am Leave a comment

D-Day For Robocalls?

I found myself yelling at my radio this morning as either NPR or Bloomberg was reporting that the FCC was poised to take final action today on a proposal to make it easier to block robocalls.

I was yelling at the broadcast because the proposal does much more than that. I might be able to live with the regulation if we could come up with a legitimate definition of what a robocall is but alas, the definition is dependent not on the nature of the communication but on the type of equipment used to make the robocall.

Second, by giving telephone service providers the authority to block all the member’s unwanted calls unless they opt in to receiving them, the proposal raises a host of compliance conundrums. For example, by the end of the day today you may very well find it more difficult to reach out to delinquent homeowners who the CFPB says you have to discuss loss mitigation options with. And what’s going to happen when there is a conflict between the documented approval you have received to contact members and the fact that the member has not affirmatively opted in to receiving electronic communications.

By the way, the FCC is taking these steps notwithstanding some great work by CUNA and the industry. As this article report from Fox Business makes clear CUNA was able to place itself in the forefront of these legitimate concerns notwithstanding the great next speed at which the FCC is determined to jam this regulation through. Stay tuned.

The Chase Is On

The Albany Business Review is reporting that Chase plans to open several new branches in the Albany Metropolitan area marking its first aggressive push into the market. The Review notes that the move reflects a broader strategy on the part of the bank to both consolidate branches and concentrate on growing in the major metropolitan areas.

BDD Bill Advances

Finally some good news to report this morning. The efforts of credit unions to become eligible for participation in the state’s banking development district program took an important step forward yesterday when the legislation was voted out of the Bank’s Committee. It now goes on to Ways and Means. We will keep you posted on future developments.

June 6, 2019 at 9:02 am 2 comments

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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