VIII. Privacy — Telephone Consumer Protection Act
FDIC Consumer Compliance Examination M an u al — August 2022 VIII–5.1
Telephone Consumer Protection Act
Introduction and Overview
The Telephone Consumer Protection Act of 1991 (TCPA)
amended the Communications Act of 1934
1
and was enacted
to address telephone marketing calls and certain telemarketing
practices. The Federal Communications Commission (FCC)
has regulatory authority under the statute.
In 1992, the FCC adopted rules to implement the TCPA,
including the requirement that entities making telephone
solicitations institute procedures for maintaining company-
specific do-not-call lists.
2
In 2003, the FCC, in coordination
with the Federal Trade Commission (FTC), revised its TCPA
rules to establish a national Do-Not-Call registry .
3
The
national registry is nationwide and covers almost all
telemarketers. The FTC administers the registry, which went
into effect on October 1, 2003. To reduce the number of hang-
up and dead air calls consumers experience, the FCC’s TCPA
regulations also contained restrictions on the use of autodialers
and requirements for transmitting Caller ID information.
Subsequently, the Junk Fax Prevention Act of 2005 amended
provisions of the TCPA related to unsolicited advertising faxes
and became effective on July 9, 2005. In 2010, the TCPA was
amended to prohibit manipulation of caller identification
information, and was amended again in 2015 to provide an
exception for calls to collect a debt owed to or guaranteed by
the United States from the prohibitions on autodialed calls or
prerecorded calls to cell phones and residential lines.
However, the Supreme Court deemed this exception
unconstitutional in July 2020.
4
In 2012, the FCC revised its regulations to require
telemarketers to (1) no longer allow telemarketers to use an
“established business relationship” to avoid getting consent
from consumers, (2) obtain prior express written consent from
consumers before making calls with an autodialer or that
contain a message made with a p rerecorded or artificial voice,
and (3) require telemarketers to provide an automated,
interactive op t-out mechanism during each of the type of calls
mentioned above in “(2)” so that consumers can immediately
tell the telemarketer to stop calling.
The FCC revised its regulations twice in 2019 to provide a
safe harbor from liability for making calls to reassigned
telephone numbers and to eliminate the requirement for an
____________________
1
47 U.S.C. § 227
2
47 C.F.R. § 64.1200
3
FTC’ s regulation (16 C.F.R. §310.4), the Telemarketing and Consumer Fraud
and Abuse Prevention Act, and the Do Not Call Implementation Act (15 USC
6151-6155) form the basis of the Do-Not-Call registry.
4
Barr v. American Association of Political Consultants, Inc., 140 S.Ct. 2335
(2020)
opt-out notice on fax advertisements sent with the recipient’s
prior express permission or consent. The FCC further revised
its regulation in 2021 to implement the Pallone-Thune
Telephone Robocall Abuse Criminal Enforcement and
Deterrence Act (TRACED Act), in which it codified
exemptions for calls to wireless numbers, amended
exemptions for artificial or prerecorded voice calls made to
residential telephone lines, and included exemptions for calls
by financial institutions provided the call is not charged to the
called person’s plan limits on minutes or texts.
5
The FCC’s TCPA regulations apply without excep tion to
financial institutions, including banks, savings associations,
and credit unions engaged in any of the telemarketing
activities targeted by the TCPA and the FCC’s final
rulemaking. Occasionally, the FCC issues declaratory rulings,
also referred to as declaratory orders. The declaratory rulings
are issued for the purpose of clarifying the interpretation and
application of the TCPA and its implementing regulations,
usually to resolve uncertainty and terminate controversies, and
are authoritative as to the FCC’s view on the laws and rules
they administer. Therefore, the declaratory rulings are
included in the examination procedures in this chapter as
reference materials and guidance about how the FCC would
interpret the TCPA and its imp lementing regulations in a given
factual scenario. However, when examiners discover TCPA
violations, financial institutions should be cited for violations
of the TCPA and/or its implementing regulations, not the
related FCC declaratory rulings.
Pursuant to section 8 of the Federal Deposit Insurance Act, 12
U.S.C. § 1818, the FDIC, the Board of Governors of the
Federal Reserve Sy st em, and the Office of the Comptroller of
the Currency have authority to enforce compliance with any
laws or regulations in connection with its regulated
banks. This section 8 authority allows the agencies to imp ose
cease and desist orders, restitution, and/or civil money
penalties when they discover violations of the TCPA.
Moreover, the National Credit Union Administration has
supervisory and enforcement authority under the Federal
Credit Union Act, 12 U.S.C. § 1786(e) and §1786(k). This
authority allows the NCUA to consider instituting civil
enforcement actions against credit unions and institution
affiliated parties when the agency discovers violations of the
TCPA.
5
The 2021 revisions became effective on March 29, 2021, except for the
amendments to 47 C.F.R. §§ 64.1200(a)(3)(ii) through (v), (b)(2) and (b)(3),
and (d), which are delayed indefinitely. See 86 Fed. Reg. 11443 (Feb. 25,
2021). These examination procedures reflect currently effective provisions.