24.2 TCPA Calling Technology, Consent and Do-Not-Call Rules

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TCPA Technology Triggers & Autodialer Scope

The TCPA regulates outbound telephone communications to residential landlines, emergency services, and wireless telephone numbers. In banking operations, the greatest compliance risk stems from automated outreach to mobile devices.

Technology Triggers: ATDS, Artificial Voice & SMS Texting

TCPA restrictions are triggered whenever an entity places a call or transmits an SMS text message using specific automated technologies:

1. Automatic Telephone Dialing System (ATDS): In Facebook, Inc. v. Duguid (2021), the U.S. Supreme Court clarified that an ATDS is equipment that has the capacity to store or produce telephone numbers using a random or sequential number generator. Systems that merely dial from pre-compiled customer contact lists without a random or sequential number generator do not meet the technical ATDS definition; however, autodialer classifications remain intensely scrutinized.
2. Artificial or Prerecorded Voices: Placing calls that deliver artificial, interactive voice response (IVR), synthetic speech, or pre-recorded audio messages triggers TCPA consent requirements regardless of whether an ATDS is used.
3. Short Message Service (SMS) Texts: Under long-standing FCC interpretations and judicial precedent, text messages are classified as "calls" under the TCPA, subjecting automated or broadcast marketing texts to identical consent mandates.

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Consent Architecture: Telemarketing vs. Servicing Calls

A financial institution's legal basis for contacting a consumer on a wireless phone depends entirely on the purpose of the communication.

1. Telemarketing / Marketing Communications (Wireless Numbers)

• Standard: Prior Express Written Consent (PEWC). Creditors cannot place telemarketing calls or marketing text messages to a wireless line using an ATDS or artificial/prerecorded voice without obtaining the recipient's prior express written consent.
• Mandatory PEWC Elements: Under 47 CFR § 64.1200(f)(8), the agreement must:
  • Be evidenced by a written agreement signed by the consumer (electronic signatures under the E-SIGN Act are fully valid);
  • Clearly authorize the seller to deliver marketing communications using an autodialer or artificial/prerecorded voice;
  • Disclose the specific telephone number to which the consumer consents to receive communications; and
  • Conspicuously state that executing the agreement is not a condition of purchasing any property, goods, or banking services.

2. Servicing / Debt Collection / Informational Communications (Wireless Numbers)

• Standard: Prior Express Consent (PEC). Non-telemarketing calls—including fraud alerts, overdraft notices, loan servicing updates, and debt collection calls—require prior express consent when placed using an ATDS or prerecorded voice.
• Acquisition of Consent: The FCC has ruled that a consumer provides prior express consent to receive servicing communications when the consumer voluntarily provides their wireless phone number to the financial institution in connection with the transaction (such as on a credit application or deposit account agreement), provided the communications are reasonably related to the underlying account or relationship.
• Limitation: Servicing consent does not permit the institution to cross-sell other products or deliver telemarketing solicitations.

Absolute Right of Consent Revocation

Consumers maintain an unqualified legal right to revoke consent to receive automated calls or text messages:

• Any Reasonable Means: Under FCC regulations and rulings, a consumer may revoke consent at any time using any reasonable method, whether oral or written. This includes telling a collection agent over the phone, replying "STOP" to an automated SMS text message, or submitting an online customer service request.
• Prohibition on Narrow Channels: Financial institutions cannot restrict consent revocation to narrow, bank-mandated mechanisms (such as requiring revocation only by certified mail to a specific post office box).
• Reassigned Numbers Database: A qualifying database query and reasonable reliance can support the FCC reassigned-number safe harbor. Querying the database is a useful control, not a universal obligation to query it before every call. Validate consent and reassignment risks under the applicable rule.

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National Do-Not-Call Registry & Company-Specific DNC Lists

Financial institutions engaging in outbound consumer telemarketing must maintain comprehensive Do-Not-Call (DNC) compliance protocols.

The National Do-Not-Call Registry

• Scrubbing Frequency: Telemarketers must scrub outbound calling lists against the National DNC Registry at least every 31 calendar days.
• Safe Harbor Defense: Under 47 CFR § 64.1200(c)(2), a bank avoids liability for inadvertent DNC calls if it demonstrates that the call was the result of an error and that it maintains:
  1. Written compliance procedures;
  2. Documented employee training on DNC rules;
  3. An internal company-specific list of numbers not to be called;
  4. A process to prevent calls to numbers on the National Registry (including downloading registry data within the prior 31 days); and
  5. An active monitoring and enforcement program.

Internal Company-Specific Do-Not-Call Lists

• When a consumer expressly requests that the financial institution not call them for marketing purposes, the bank must record the request and place the telephone number on its internal DNC list.
• Retention Mandate: Internal DNC opt-out records must be honored and maintained for at least 5 years from the date the request is received.

The Established Business Relationship (EBR) Exemption

A financial institution may initiate telemarketing calls to numbers listed on the National DNC Registry (but not on the bank's internal DNC list) if an Established Business Relationship (EBR) exists under 47 CFR § 64.1200:

1. Transactional EBR (18-Month Window): Extends for 18 months following the consumer's last purchase, payment, or financial transaction with the institution (e.g., maintaining an active checking account, making a loan payment).
2. Inquiry EBR (3-Month Window): Extends for 3 months from the date the consumer submits an application, inquiry, or pre-qualification request regarding products or services offered by the institution.
3. Override Rule: If a consumer with an active EBR specifically requests to be placed on the bank's internal company DNC list, the EBR exemption terminates immediately, and no further telemarketing calls may be placed.