The Telephone Consumer Protection Act NCHER Private Education Loan and Consumer Finance Committee Mark W. Brennan Mark.Brennan@hoganlovells.com July 2017

Disclaimer Nothing in this slide deck is intended to provide legal advice. In addition, nothing in this slide deck is intended to provide legal conclusions about how a court’s or the FCC’s language should be interpreted, nor have we sought to apply decisions to specific entities or specific circumstances Hogan Lovells

The TCPA is a C-Suite Issue

The TCPA is a C-Suite Issue Congress enacted the TCPA in 1991 specifically to curb aggressive telemarketing practices Imposes a number of restrictions on telemarketing calls, faxes, and other outbound communications Some restrictions apply to non-telemarketing calls Implemented by the Federal Communications Commission (FCC) One of the most sued-under consumer protection statutes Hogan Lovells

The TCPA is a C-Suite Issue $500 $1,500 TCPA Violations Can Be Costly Hogan Lovells

Key Requirements WHO WHAT HOW Voice/Text/Fax? Technology? Prerecorded? B2C v. B2B? Wireless or Landline? WHAT Marketing or Informational? HOW Voice/Text/Fax? Technology? Prerecorded? Hogan Lovells

The TCPA is a C-Suite Issue Rapid Growth in TCPA Cases Filed Source: WebRecon LLC Hogan Lovells

Key Requirements Wireless rules increasingly important, particularly when serving younger Americans NOTE: Adults are aged 18 and over; children are under age 18. SOURCE: CDC/NCHS, National Health Interview Survey. Hogan Lovells

On the Horizon

On the Horizon D.C. Circuit Appeal of 2015 FCC Order (ACA International v. FCC) The July 2015 FCC Order was controversial and hotly contested Appeal filed just days after Order was issued Petitioners challenge: ATDS Calls to reassigned numbers and one-call safe harbor Revocation of consent Oral arguments held in October/decision expected soon. Hogan Lovells

Autodialer??? Hogan Lovells

On the Horizon FCC Rules Implementing the Budget Act Amendment On August 2, 2016, the FCC adopted rules implementing Section 301 of the Bipartisan Budget Act. The rules apply to all callers, including the federal government and its agents. No more than three calls within a 30-day period. Calls must concern a loan that is in default, in delinquency, or at imminent risk of delinquency. Debtors can stop autodialed artificial voice and prerecorded-voice servicing and collection calls at any time. Calls and text messages must be limited to 60 seconds and 160 characters, respectively, excluding required disclosures. Hogan Lovells

On the Horizon FCC Rules Implementing the Budget Act Amendment Covered calls may be placed by either the debt owner or its contractor. Covered calls may be placed only to the debtor or another person or legal entity legally responsible for paying the debt. Covered calls may be placed to three types of numbers: Those provided by the debtor at the time the debt was incurred Those subsequently provided by the debtor to the owner of the debt or its contractor; and Those that the owner of the debt or its contractor has obtained from an independent source, provided that the number actually is the debtor’s telephone number. Hogan Lovells

On the Horizon FCC Rules Implementing the Budget Act Amendment Federal agencies may request a waiver of the new rules. For example, a federal agency may seek a waiver to allow it and its agents to place more than three calls per month without consent of the called party. The Consumer and Governmental Affairs Bureau may act on such waiver requests on delegated authority. The FCC noted that, to the extent waiver proceedings demonstrate that a “genuine conflict” exists between the three-per-thirty-days call limit and another federal law, it is likely to view that as probative of the good cause needed to justify a waiver. Hogan Lovells

On the Horizon Petition for Reconsideration Filed December 16, 2016 More calls are needed – 3/week or 10/month. Calls to parties other than the debtor are also exempt. Fix the jurisdiction/legal authority analysis. Student loans may need a unique framework. Hogan Lovells

On the Horizon New FCC Leadership – Chairman Ajit Pai Spoofing Reassigned Numbers New Presidential Administration New Congress Prior Express Consent Petition Hogan Lovells

Additional Steps to Protect Your Organization Regular Board Briefings Board-Approved Policy Compliance Audit Employee Training Proper Risk Evaluation Hogan Lovells

Hogan Lovells TCPA Leadership Coalition