In the case of ACA International v. Federal Communications Commission and United States of America, Ballard Spahr LLP represented the Credit Union National Association (CUNA) in filing a joint amici brief with the American Bankers Association and the Independent Community Bankers Association in support of the petitioners’ brief requesting that the U.S. Court of Appeals for the D.C. Circuit vacate the Federal Communications Commission’s (FCC) recent order and declaratory ruling (Order) implementing the Telephone Consumer Protection Act (TCPA).

CUNA’s Chief Advocacy Officer Ryan Donovan noted, “The Ballard Spahr team helped us strategically approach this amicus brief every step of the way, and they skillfully interpreted the Order and explained its adverse implications for credit unions to ensure that CUNA’s voice is heard throughout the appellate process."  

The brief of the amici curiae argues that certain aspects of the Order are arbitrary and capricious and describes how the Order will detrimentally impact financial institutions. As the brief explains, the Order effectively prevents financial institutions, especially small entities like credit unions, from using the most efficient means available to advise customers and members of important and time-sensitive information affecting the customers’ or members’ accounts. Banks and credit unions send communications to alert their customers and members of fraud, identity theft, data security breaches, missed payments, and late fees.

The brief challenges three specific aspects of the Order:

  • The definition of an automatic telephone dialing system (autodialers).
  • The standard for liability based on a single call made to a reassigned number (i.e., a wireless telephone number that has been reassigned to a consumer that has not provided consent to receive such calls).
  • The broad and undefined expectations expressed by the FCC with regard to the mechanisms that need to be made available to individuals to revoke consent to receive autodialed calls.

“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,” Donovan said. “We believe the FCC acted in a manner that is harmful to consumers, and is an abuse of the authority Congress granted to it.”

Ballard Spahr created a TCPA Task Force to assist clients in navigating the complex issues that arise under the TCPA, and as previously reported, has been following the case challenging the Order closely. The Task Force, which comprises regulatory attorneys and litigators, assists clients by providing counsel on avoiding TCPA liability, including advising on mobile product design, reviewing policies and practices, and helping to design mobile text message and prerecorded and autodialed call campaigns. It also assists clients in handling scrutiny from regulators, including preparing for examinations, responding to investigations, and defending against enforcement actions. In addition, Task Force members defend clients against TCPA class or individual actions.

Ballard Spahr is nationally recognized for its skill in appellate litigation and providing guidance to financial institutions in complying with regulatory requirements.  For more information, please contact Consumer Financial Services Group Practice Leader Alan S. Kaplinsky, Appellate Group Practice Leader Burt M. Rublin, the authors of this alert, or the Ballard Spahr attorney with whom you work.

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