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NAFCU, in a letter sent Wednesday to the Federal Communications Commission (FCC), argued that equipment qualifies as an Automatic Telephone Dialing System (ATDS) only if "it has the capacity to dial numbers without human intervention," and if equipment is not being used as an ATDS, it should not be subject to prohibitions under the Telephone Consumer Protection Act (TCPA).

NAFCU Senior Regulatory Affairs Counsel Ann Kossachev offered the definition in response to the FCC's request for comments on various TCPA issues in light of the March decision from the U.S. Court of Appeals for the D.C. Circuit, which invalidated the FCC's definition of "autodialer" and rejected the commission's interpretation of when a caller violates the TCPA by calling a reassigned number.

In addition, Kossachev reiterated NAFCU's support for an FCC-designated reassigned numbers database as current third-party solutions "are incomplete and sometimes inaccurate." She also requested a safe harbor for those who utilize the database but inadvertently make a "good-faith" call to a number that has been reassigned.

Kossachev also highlighted the increased litigation risk related to revocation of consent and urged the FCC to use a standard that allows callers to define acceptable channels of revocation based on what is convenient for their systems and processing procedures.

"Oral revocation of consent is not ideal for credit unions because it causes confusion for employees and members alike," Kossachev wrote. "There are too many instances in which a consumer alleges to have orally revoked consent to be contacted yet there is no record of such consent and callers have not had the opportunity to incorporate the revocation into their systems." Instead, Kossachev said credit unions would prefer revocation of consent be made in writing through either a signed document or opt-out method provided by the institution through a phone call or text message.

Kossachev's full letter is available here.

NAFCU has urged the FCC for more clarity and flexibility under the TCPA so credit unions can contact their members without fear of breaking the law. Additional information on NAFCU's efforts is available here.