As readers of this blog will recall, numerous federal agencies announced a crackdown on the marketing industry, specifically with respect to Telephone Consumer Protection Act ("TCPA") compliance, in July of this year. On November 1, 2023, the Office of the Comptroller of the Currency ("OCC") became the latest agency to join in the campaign by issuing its TCPA-related revised examination procedures ("Revised Procedures"). The OCC TCPA-related procedures are interagency in nature, involving the OCC, the Federal Deposit Insurance Corporation, and the National Credit Union Administration.
The OCC TCPA Revised Procedures include:
- How customers can revoke consent under the TCPA;
- Special exemptions from the customer consent provisions of the TCPA for banks that employ automated communications to notify customers of potential account fraud; and
- Safe harbors for callers that scrub against a reassigned number database maintained by the Federal Communications Commission ("FCC") in advance of calling/texting consumers.
Of note, the Revised Procedures also rescind and replace the "Telephone Consumer Protection Act and Junk Fax Protection Act" section of the "Other Consumer Protection Laws and Regulations" booklet of the Comptroller's Handbook.
OCC AND THE TCPA
The main agencies tasked with implementing and policing compliance with the TCPA are the FCC and Federal Trade Commission ("FTC"). As stated in Federal Regulation 47 CFR 64.1200, implemented by the FCC, all TCPA regulations "apply without exception to financial institutions, including banks, savings associations, and credit unions engaged in any . . . telemarketing activities."
Pursuant to the Federal Deposit Insurance Act, the OCC has authority to enforce compliance with any laws in connection with its regulated banks. This includes telephone calls and text messages that are regulated by the TCPA.
OCC TCPA REVISED EXAMINATION PROCEDURES
The Revised Procedures detail the following seven-step examination procedure for determining; (A) whether there has been a violation of the TCPA; and (B) if so, whether further action is necessary:
- Does the financial institution or a third-party telemarketing firm operating on its behalf engage in activities covered by the TCPA?
- Gather information from the subject institution's compliance management system relating to the TCPA.
- Assess the adequacy of the institution's internal TCPA compliance.
- Determine the extent and adequacy of the TCPA compliance training received by individuals responsible for calling/texting consumers.
- Review the institution's compliance monitoring procedures and/or audit materials to determine whether all TCPA provisions are being met and whether any deficiencies exist.
- Review the institution's document retention practices to ensure documentation related to compliance is kept.
- Determine whether any TCPA-related complaints have been filed against the institution and why.
FINANCIAL INSTITUTIONS BEWARE
It is not just marketing companies that need to be worried about TCPA violations. While financial institutions have always had to comply with the TCPA, with the release of the OCC Revised Procedures, it is now even more important to have proper practices and procedures in place to avoid civil lawsuits and penalties.
It is important to point out that depending on the nature of the violation, financial institutions can face daily penalties ranging between $5,000 and $1,000,000 for ongoing violations.
In light of the OCC TCPA Revised Procedures (and the severe consequences for non-compliance), financial institutions should retain experienced telemarketing law attorneys to ensure TCPA compliance.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.