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

2. 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

3. The TCPA is a C-Suite Issue

4. 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
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5. The TCPA is a C-Suite Issue
$500
$1,500
TCPA Violations Can Be Costly
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6. 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?
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7. The TCPA is a C-Suite Issue
Rapid Growth in TCPA Cases Filed
Source: WebRecon LLC
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8. 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.
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9. On the Horizon

10. 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.
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11. Autodialer???
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12. 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.
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13. 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.
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14. 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.
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15. 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.
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16. On the Horizon New FCC Leadership – Chairman Ajit Pai
Spoofing
Reassigned Numbers
New Presidential Administration
New Congress
Prior Express Consent Petition
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17. Additional Steps to Protect Your Organization
Regular Board Briefings
Board-Approved Policy
Compliance Audit
Employee Training
Proper Risk Evaluation
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18. Hogan Lovells TCPA Leadership Coalition