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

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.

In 2003, the FCC, in coordination

with the Federal Trade Commission (FTC), revised its TCPA

rules to establish a national Do-Not-Call registry .

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.

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

____________________

47 U.S.C. § 227

47 C.F.R. § 64.1200

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.

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.

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.

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.

VIII. Privacy — Telephone Consumer Protection Act

VIII–5.2 FDIC Consumer Compliance Examination Manual — August 2022

In this chapter, the use of the words “person” and “entity”

includes banks, savings associations, and

credit unions, and

third parties acting on behalf of those financial institutions.

Key Definitions (47 C.F.R. § 64.1200(f))

“Advertisement” means any material advertising the

commercial availability or quality of any property, goods, or

services.

“Automatic Telephone Dialing S ystem” and “Autodialer”

mean equipment which has the cap acity to store or produce

telephone numbers to be called, using a random or sequential

number generator; and to dial such numbers.

“Clear and Conspicuous” means a notice that would be

apparent to the reasonable consumer, separate and

distinguishable from the advertising copy or other disclosures.

With respect to facsimiles and for purposes of notices

contained in an unsolicited advertisement

, the notice must be

placed at either the top or bottom of the facsimile.

“Emergency Purposes” means calls made necessary in any

situation affecting the health and safety of consumers.

“Established Business Relationship” for the purposes of

telephone solicitations means a prior or existing relationship

formed by a voluntary two-way communication between a

person or entity and a residential subscriber, with or without

an exchange of consideration, on the basis of the subscriber’s

purchase or transaction with the entity within the 18 months

immediately p receding the date of the telephone call, or on the

basis of the subscriber’s inquiry or application regarding

products or services offered by the entity within the three

months immediately p receding the date of the call, which

relationship has not been previously terminated by either

party.

• The subscriber’s seller-sp ecific do-not-call request,

as discussed under the Company-Specific Do-Not-

Call Lists section below,

terminates an established

business relationship for purposes of telemarketing

and telephone solicitation even if the subscriber

continues to do business with the seller.

____________________

This is the statutory definition in 47 U.S.C § 227. The text of the definition in

the regulation does not contain certain punctuation found in the statutory

definition, like the comma. The United States Supreme Court cited to the

statutory definition in Facebook v. Duguid 592 U.S. (2021); (141 S.Ct. 1163).

To qualify as an “ automatic telephone dialing system,” a device must have the

capacity either to store a telephone number using a random or sequential

generator or to produce a telephone number using a random or sequential

number generator. Also see 2020 Declaratory Ruling and Order (FCC 20-

670, June 25, 2020) under References section in these procedures for

additional FCC guidance on automatic telephone dialing system.

• The subscriber’s established business relationship

with a particular business entity does not extend to

affiliated entities unless the subscriber would

reasonably expect them to be included given the

nature and type of goods or services offered by the

affiliate and the identity of the affiliate.

“Established Business Relationship” for purposes of the

use of telephone facsimile machine, computer, or other

device to send unsolicited advertisements to a telephone

facsimile machine on the sending of facsimile

advertisements means a prior or existing relationship formed

by a voluntary two-way communication between a person or

entity and a business or residential subscriber, with or without

an exchange of consideration, on the basis of an inquiry,

application, purchase, or transaction by the business or

residential subscriber regarding products or services offered by

such person or entity, which relationship has not been

previously terminated by either party.

“Facsimile Broadcaster” means a person or entity that

transmits messages to telephone facsimile machines on behalf

of another person or entity for a fee.

“Personal Relationship” means any family member, friend,

or acquaintance of the telemarketer making the call.

“Prior Express Written Consent” means an agreement, in

writing, bearing the signature of the person called that clearly

authorizes the seller to deliver or cause to be delivered to the

person called advertisements or telemarketing messages using

an automatic telephone dialing system or an artificial or

prerecorded voice, and the telephone number to which the

signatory authorizes such advertisements or telemarketing

messages to be delivered.

• The written agreement shall include a clear and

conspicuous disclosure informing the person signing

that:

o By executing the agreement, such person

authorizes the seller to deliver or cause to

be delivered to the signatory telemarketing

calls using an automatic telephone dialing

47 C.F.R. § 64.1200(a)(4)(iii)(A)

Set forth in paragraph (d)(3) of the regulation.

VIII. Privacy — Telephone Consumer Protection Act

FDIC Consumer Compliance Examination M an u al — August 2022 VIII–5.3

system or an artificial or prerecorded voice;

and

o The person is not required to sign the

agreement (directly or indirectly), or agree

to enter into such an agreement as a

condition of purchasing any property,

goods, or services.

• The term “signature” shall include an electronic or

digital form of signature, to the extent that such form

of signature is

recognized as a valid signature under

app licable federal law or state contract law.

“Seller” means the person or entity on whose behalf a

telephone call or message is initiated for the purpose of

encouraging purchase or rental of, or investment in, property,

goods, or services, which is transmitted to any person.

“Sender” for purposes of the prohibitions discussed under

Prohibitions on Use of Telephone Fax Machine, Computer, or

Other Device to Send Unsolicited Advertisement to a

Telephone Fax Machine section below

, means the person or

entity on whose behalf a facsimile unsolicited advertisement is

sent or whose goods or services are advertised or promoted in

the unsolicited advertisement.

“Telemarketer” means the person or entity that initiates a

telephone call or message for the purpose of encouraging the

purchase or rental of, or investment in, property, goods, or

services, which is transmitted to any person.

“Telemarketing” means the initiation of a telephone call or

message for the purpose of encouraging the purchase or rental

of, or investment in, property, goods, or services, which is

transmitted to any person.

“Telephone Facsimile Machine” means equipment which

has the capacity to transcribe text or images, or both, from

paper into an electronic signal and to transmit that signal over

a regular telephone line, or to transcribe text or images (or

both) from an electronic signal received over a regular

telephone line onto paper.

“Telephone Solicitation” means the initiation of a telephone

call or message for the purpose of encouraging the purchase or

rental of, or investment in, property, goods, or services, which

____________________

47 C.F.R. § 64.1200 (a)(4)

47 C.F.R. § 64.1200(a)(1)

See 2015 Declaratory Ruling and Order (FCC 15-72, July 10, 2015) under

References section in these procedures for additional FCC guidance on

emergency communications by financial institutions.

is transmitted to any person, but such term does not include a

call or message:

• To any person with that person’s prior express

permission;

• To any person with whom the caller has an

established business relationship; or

• By or on behalf of a tax-exempt nonprofit

organization.

“Unsolicited Advertisement” means any material advertising

the commercial availability or quality of any property, goods,

or services, which is transmitted to any person without that

person’s prior express invitation or permission, in writing or

otherwise.

Restrictions on Telemarketing, Telephone

Solicitation, and Facsimile Advertising - Delivery

Restrictions (47 C.F.R. § 64.1200)

Prohibitions on Autodialed or Prerecorded Calls to Cell

Phones and Other Sensitive Numbers (47 C.F.R. §

64.1200(a)(1)-(2))

General Prohibitions

No person or entity may initiate any telephone call (other

than a call that is made for emergency purposes

or with

the prior express consent of the called party) using an

automatic telephone dialing system or an artificial or

prerecorded voice, except as provided in the Exceptions to

the General Prohibitions section below,

to:

• Any emergency telephone line, including any 911

line and any emergency line of a hosp ital, medical

physician or service office, health care facility,

poison control center, or fire protection or law

enforcement agency ;

• The telephone line of any guest room or patient room

of a hospital, health care facility, elderly home, or

similar establishment; or

• Any telephone number assigned to a paging service,

cellular telep hone service, specialized mobile radio

service, or other radio common carrier service, or

47 C.F.R. § 64.1200(a)(2)

VIII. Privacy — Telephone Consumer Protection Act

VIII–5.4 FDIC Consumer Compliance Examination Manual — August 2022

any service for which the called party is charged for

the call.

o Note: A person will not be liable for violating

this prohibition

when the call is placed to a

wireless number that has been ported from

wireline service and such call is a voice call;

not knowingly made to a wireless number; and

made within 15 days of the porting of the

number from wireline to wireless service,

provided the number is not already on the

national do-not-call registry or caller’s

company-specific do-not-call list.

Exceptions to the General Prohibitions

No person or entity may initiate, or cause to be initiated,

any telephone call that includes or introduces an

advertisement or constitutes telemarketing, using an

automatic telephone dialing system or an artificial or

prerecorded voice, to any of the lines or telephone

numbers described above, other than:

• A call made with the prior express written

consent of the called party or the prior express

consent of the called p arty when the call is made

by or on behalf of a tax-exempt nonprofit

organization; or

• A call that delivers a “health care” message

made by, or on behalf of, a “covered entity” or

its “business associate,” as those terms are

defined in the Health Insurance Portability and

Accountability Act (HIPAA) Privacy Rule.

Prohibitions on Prerecorded Calls to Residential Lines (47

C.F.R. § 64.1200(a)(3))

No person or entity may initiate any telephone call to any

residential line using an artificial or prerecorded voice to

deliver a message without the prior express written consent of

the called p arty, unless the call:

• Is made for emergency purposes;

• Is not made for a commercial purpose;

____________________

47 C.F.R. § 64.1200(a)(1)(iii)

47 C.F.R. § 64.1200(a)(2)

45 C.F.R. § 160.103

• Is made for a commercial purpose but does not

include or introduce an advertisement or constitute

telemarketing;

• Is made by or on behalf of a tax-exemp t nonprofit

organization; or

• Delivers a “health care” message made by, or on

behalf of, a “covered entity” or its “business

associate,” as those terms are defined in the HIPAA

Privacy Rule.

Safe Harbor (47 C.F.R. § 64.1200(m))

A person will not be liable for violating the prohibitions under

the Prohibition on Autodialed or Prerecorded Calls to Cell

Phones, Other Sensitive Numbers section and the Prohibition

on Prerecorded Calls to Residential Lines section above

making a call to a number for which the person previously had

obtained prior express consent of the called party as required

in those same sections

but at the time of the call, the number

is not assigned to the subscriber to whom it was assigned at

the time such prior express consent was obtained if the person,

bearing the burden of proof and persuasion, demonstrates that:

• The person, based upon the most recent numbering

information reported by telecommunications carriers

to the North American Numbering P lan

Administrator, by querying the database operated by

the North American Number Plan Administrator and

receiving a response of “no”, has verified that the

number has not been permanently disconnected since

the date prior express consent was obtained as

required in the Prohibition on Autodialed or

Prerecorded Calls to Cell Phones, Other Sensitive

Numbers section and the Prohibition on Prerecorded

Calls to Residential Lines section above;

and

• The person's call to the number was the result of the

database erroneously returning a response of “no” to

the person's query consisting of the number for

which prior express consent was obtained as required

in the Prohibition on Autodialed or Prerecorded

Calls to Cell Phones, Other Sensitive Numbers

section and the Prohibition on Prerecorded Calls to

Residential Lines section above

and the date on

which such prior express consent was obtained.

47 C.F.R. § 64.1200(a)(1), (2), or (3)

VIII. Privacy — Telephone Consumer Protection Act

FDIC Consumer Compliance Examination M an u al — August 2022 VIII–5.5

Disclosures and Notices for Artificial or Prerecorded Voice

Telephone Messages (47 C.F.R. § 64.1200(b))

All artificial or p rerecorded voice telep hone messages shall:

• At the beginning of the message, state clearly the

identity of the business, individual, or other entity

that is responsible for initiating the call. If a business

is responsible for initiating the call, the name under

which the entity is registered to conduct business

with the State Corporation Commission (or

comparable regulatory authority) must be stated;

• During or after the message, state clearly the

telephone number (other than that of the autodialer or

prerecorded message player that placed the call) of

such business, other entity, or individual. The

telephone number provided may not be a 900 number

or any other number for which charges exceed local

or long distance transmission charges. For

telemarketing messages to residential telep hone

subscribers, such telephone number must permit any

individual to make a do-not-call request during

regular business hours for the duration of the

telemarketing campaign; and

• In every case where the artificial or prerecorded

voice telephone message includes or introduces an

advertisement or constitutes telemarketing and is

delivered to a residential telephone line or any of the

lines or telephone numbers described in the first

paragraph under the Prohibition on Autodialed or

Prerecorded Calls to Sensitive Numbers and Cell

Phones section above (General Prohibition

provide an automated, interactive voice- and/or key

press-activated op t-out mechanism for the called

person to make a do-not-call request, including brief

explanatory instructions on how to use such

mechanism, within two (2) seconds of providing the

identification information required in the first bullet

above in this section.

When the called person elects

to opt out using such mechanism, the mechanism

must automatically record the called person’s

number to the seller’s do-not-call list and

immediately terminate the call. When the artificial or

prerecorded voice telephone message is left on an

answering machine or a voice mail service, such

____________________

47 C.F.R. § 64.1200(a)(1)(i) through (iii)

47 C.F.R. § 64.1200(b)(1)

47 C.F.R. § 64.1200(e). The Do-Not-Call Lists section of the examination

procedures are also applicable to any person or entity making telephone

solicitations or telemarketing calls to wireless telephone numbers.

message must also provide a toll free number that

enables the called p erson to call back at a later time

and connect directly to the automated, interactive

voice- and/or key press-activated op t-out mechanism

and automatically record the called person’s number

to the seller’s do-not-call list.

Do-Not-Call Lists

Nationwide Do-Not-Call List (47 C.F.R. § 64.1200(c)(2))

No person or entity shall initiate any telep hone

solicitation to a residential telephone subscriber or

wireless telephone subscriber

who has registered his or

her telephone number on the national do-not-call registry

of persons who do not wish to receive telephone

solicitations that is maintained by the Federal

Government.

Such do-not-call registrations must be

honored indefinitely, or until the registration is cancelled

by the consumer or the telephone number is removed by

the database administrator. Any person or entity making

telephone solicitations (or on whose behalf telephone

solicitations are made) will not be liable for violating this

requirement if:

• It can demonstrate that the violation is the result

of error and that as part of its routine business

practice, it meets the following standards:

o It has established and implemented

written procedures to comply with the

national do-not-call rules;

o It has trained its personnel, and any

entity assisting in its comp liance, in

procedures established pursuant to the

national do-not-call rules;

o It has maintained and recorded a list of

telephone numbers that the seller may

not contact;

o It uses a process to p revent telep hone

solicitations to any telephone number

on any list established pursuant to the

do-not-call rules, employing a version

of the national do-not-call registry

obtained from the administrator of the

47 C.F.R. § 64.1100(h). The term subscriber is any one of the following: (1)

The party identified in the account records of a common carrier as

responsible for payment of the telephone bill; (2) Any adult person

authorized by such party to change telecommunications services or to charge

services to the account; or (3) Any person contractually or otherwise lawfully

authorized to represent such party.

VIII. Privacy — Telephone Consumer Protection Act

VIII–5.6 FDIC Consumer Compliance Examination Manual — August 2022

registry no more than 31 days prior to

the date any call is made, and maintains

records documenting this process;

o It uses a process to ensure that it does

not sell, rent, lease, purchase or use the

national do-not-call database, or any

part thereof, for any purpose except

compliance with this section and any

such state or federal law to prevent

telephone solicitations to telephone

numbers registered on the national

database;

• It p urchases access to the relevant do-not-call

data from the administrator of the national

database and does not participate in any

arrangement to share the cost of accessing the

national database, including any arrangement

with telemarketers who may not divide the costs

to access the national database among various

client sellers; or

• It has obtained the subscriber’s prior express

invitation or permission. Such permission must

be evidenced by a signed, written agreement

between the consumer and seller which states

that the consumer agrees to be contacted by this

seller and includes the telephone number to

which the calls may be p laced; or

• The telemarketer making the call has a p ersonal

relationship with the recipient of the call.

Company-Specific Do-Not-Call Lists, Mandatory Procedures,

and Opt-Out Requests (47 C.F.R. § 64.1200(d))

No person or entity shall initiate any call for telemarketing

purposes to a residential telephone subscriber or wireless

telephone subscriber

unless such person or entity has

instituted procedures for maintaining a list of persons who

request not to receive telemarketing calls made by or on

behalf of that person or entity.

The procedures instituted

must meet the following minimum standards:

____________________

47 C.F.R. § 64.1200(e). The Do-Not-Call Lists section of the examination

procedures are also applicable to any person or entity making telephone

solicitations or telemarketing calls to wireless telephone numbers.

• Persons or entities making calls for

telemarketing purposes must have a written

policy, available upon demand, for maintaining a

do-not-call list;

• Personnel engaged in any aspect of

telemarketing must be informed and trained in

the existence and use of the do-not-call list;

• If a person or entity making a call for

telemarketing purposes (or on whose behalf such

a call is made) receives a request from a

residential telephone subscriber or wireless

telephone subscriber not to receive calls from

that person or entity, the person or entity must

record the request and place the subscriber’s

name, if provided, and telephone number on the

do-not-call list at the time the request is made.

Persons or entities making calls for

telemarketing purposes (or on whose behalf such

calls are made) must honor a residential

subscriber’s or wireless telephone subscriber’s

do-not-call request within a reasonable time from

the date such request is made. This period may

not exceed 30 days from the date of such request.

If such requests are recorded or maintained by a

party other than the person or entity on whose

behalf the telemarketing call is made, the p erson

or entity on whose behalf the telemarketing call

is made will be liable for any failures to honor

the do-not-call request. A person or entity

making a call for telemarketing purposes must

obtain a consumer’s prior express permission to

share or forward the consumer’s request not to

be called to a party other than the person or

entity on whose behalf a telemarketing call is

made or an affiliated entity;

• A person or entity making a call for

telemarketing purposes must provide the called

party with the name of the individual caller, the

name of the person or entity on whose behalf the

call is being made, and a telephone number or

address at which the person or entity may be

contacted. The telephone number provided may

47 C.F.R. § 64.1100(h). The term subscriber is any one of the following: (1)

The party identified in the account records of a common carrier as

responsible for payment of the telephone bill; (2) Any adult person

authorized by such party to change telecommunications services or to charge

services to the account; or (3) Any person contractually or otherwise lawfully

authorized to represent such party.

See 2015 Declaratory Ruling and Order (FCC 15-72, July 10, 2015) under

References section in these procedures for additional FCC guidance.

VIII. Privacy — Telephone Consumer Protection Act

FDIC Consumer Compliance Examination M an u al — August 2022 VIII–5.7

not be a 900 number or any other number for

which charges exceed local or long distance

transmission charges;

• In the absence of a specific request by the

subscriber to the contrary, a residential

subscriber’s or wireless telephone subscriber’s

do-not-call request shall ap ply to the p articular

business entity making the call (or on whose

behalf a call is made), and will not apply to

affiliated entities unless the consumer reasonably

would expect them to be included given the

identification of the caller and the product being

advertised; and

• A person or entity making calls for telemarketing

purposes must maintain a record of a consumer’s

request not to receive further telemarketing calls.

A do-not-call request must be honored for 5

years from the time the request is made.

Tax-exempt nonprofit organizations are not required to

comply with provisions contained within this Mandatory

Procedures, Company-Specific Do-Not-Call Lists, and

Opt-Out Requests section.

Other Restrictions on Calls

Simultaneous Engagement of Multi-line Businesses (47 C.F.R.

§ 64.1200(a)(5))

No person or entity may use an automatic telep hone

dialing system in such a way that two or more telep hone

lines of a multi-line business are engaged simultaneously.

Disconnected Calls (47 C.F.R. § 64.1200(a)(6))

No person or entity may disconnect an unanswered

telemarketing call prior to at least 15 seconds or four (4)

rings.

Abandoned Calls (47 C.F.R. § 64.1200(a)(7))

No person or entity may abandon more than three percent

of all telemarketing calls that are answered live by a

person, as measured over a 30–day period for a single

calling campaign. If a single calling camp aign exceeds a

30–day period, the abandonment rate shall be calculated

separately for each successive 30–day period or portion

thereof that such calling campaign continues. A call is

“abandoned” if it is not connected to a live sales

____________________

47 C.F.R. § 64.1200(a)(1)(i) through (iii)

representative within two (2) seconds of the called

person’s completed greeting.

Whenever a live sales representative is not available to

speak with the person answering the call, within two (2)

seconds after the called person’s completed greeting, the

telemarketer or the seller must provide:

• A prerecorded identification and opt-out

message that is limited to disclosing that the call

was for “telemarketing purposes” and states the

name of the business, entity, or individual on

whose behalf the call was p laced, and a

telephone number for such business, entity, or

individual that permits the called person to make

a do-not-call request during regular business

hours for the duration of the telemarketing

campaign; provided, that, such telephone number

may not be a 900 number or any other number

for which charges exceed local or long distance

transmission charges; and

• An automated, interactive voice- and/or key

press-activated op t-out mechanism that enables

the called p erson to make a do-not-call request

prior to terminating the call, including brief

explanatory instructions on how to use such

mechanism. When the called person elects to

opt-out using such mechanism, the mechanism

must automatically record the called person’s

number to the seller’s do-not-call list and

immediately terminate the call.

A call for telemarketing purposes that delivers an

artificial or prerecorded voice message to a residential

telephone line or to any of the lines or telephone numbers

described in the Prohibition on Autodialed or

Prerecorded Calls to Sensitive Numbers and Cell Phones

section above (General Prohibition

) after the subscriber

to such line has granted prior express written consent for

the call to be made shall not be considered an abandoned

call if the message begins within two (2) seconds of the

called p erson’s comp leted greeting.

The seller or telemarketer must maintain records

establishing comp liance with this Abandoned Calls

section. Calls made by or on behalf of tax-exemp t

nonprofit organizations are not covered by the provisions

in this Abandoned Calls section.

VIII. Privacy — Telephone Consumer Protection Act

VIII–5.8 FDIC Consumer Compliance Examination Manual — August 2022

Determining Type of Telephone Line (47 C.F.R. §

64.1200(a)(8))

No person or entity may use any technology to dial any

telephone number for the purpose of determining whether

the line is a facsimile or voice line.

Calls Made by Financial Institutions

(47 C.F.R. §

64.1200(a)(9)(iii))

A person or entity will not be liable for making any

telephone call

using an automatic telephone dialing

system or an artificial or prerecorded voice; to any

telephone number assigned to a paging service, cellular

telephone service, specialized mobile radio service, or

other radio common carrier service, or any service for

which the called party is charged for the call; provided

that the call is not charged to the called person or counted

against the called p erson’s plan limits on minutes or texts

and all of the following conditions are met:

Voice calls and text messages:

• Must be sent only to the wireless telephone

number provided by the customer of the

financial institution;

• Must state the name and contact information of

the financial institution (for voice calls, these

disclosures must be made at the beginning of the

call);

• Are strictly limited to those for the following

purposes: transactions and events that suggest a

risk of fraud or identity theft; possible breaches

of the security of customers’ personal

information; steps consumers can take to prevent

or remedy harm caused by data security

breaches; and actions needed to arrange for

receipt of pending money transfers;

• Must not include any telemarketing, cross-

marketing, solicitation, debt collection, or

advertising content; and

• Must be concise, generally one minute or less in

length for voice calls (unless more time is

needed to obtain customer responses or answer

____________________

As defined in section 4(k) of the Bank Holding Company Act of 1956, 15

U.S.C. 6809(3)(A).

The term “ call” includes a text message, including a short message service

(SMS) call.

customer questions) or 160 characters or less in

length for text messages.

A financial institution:

• May initiate no more than three messages

(whether by voice call or text message) p er event

over a three-day period for an affected account;

• Must offer recip ients within each message an

easy means to opt out of future such messages;

voice calls that could be answered by a live

person must include an automated, interactive

voice- and/or key press-activated op t-out

mechanism that enables the call recip ient to

make an op t-out request prior to terminating the

call; voice calls that could be answered by an

answering machine or voice mail service must

include a toll-free number that the consumer can

call to opt out of future calls; text messages must

inform recipients of the ability to opt out by

reply ing “STOP,” which will be the exclusive

means by which consumers may opt out of such

messages; and,

• Must honor opt-out requests immediately .

Calling Times (47 C.F.R. § 64.1200(c)(1))

No person or entity shall initiate any telephone solicitation

to any residential telephone subscriber before the hour of 8

a.m. or after 9 p.m. (local time at the called party’s

location).

Caller ID Information and Blocking (47 C.F.R. § 64.1601(e))

Any person or entity that engages in telemarketing, as

defined

in the TCPA regulations and reiterated in the

Key Definitions section above, must transmit caller

identification information. Caller identification

information must include either the calling party number

or the automatic numbering information, and, when

available by the telemarketer’s carrier, the name of the

telemarketer. It shall not be a violation of this paragraph

to substitute (for the name and phone number used in, or

billed for, making the call) the name of the seller on behalf

of which the telemarketing call is p laced and the seller’s

customer service telephone number. The telephone

47 C.F.R. § 64.1200(f)(10)

VIII. Privacy — Telephone Consumer Protection Act

FDIC Consumer Compliance Examination M an u al — August 2022 VIII–5.9

number so provided must permit any individual to make a

do-not-call request during regular business hours. The

person or entity engaging in telemarketing is also

prohibited from blocking the transmission of caller

identification information.

Tax-exempt nonprofit organizations are not required to

comply with this Caller ID Information and Blocking

section.

Prohibitions on Use of Telephone Fax Machine, Computer,

or Other Device to Send Unsolicited Advertisement to a

Telephone Fax Machine (47 C.F.R. § 64.1200(a)(4))

General Prohibitions and Notification Requirements (47

C.F.R. § 64.1200(a)(4)((i) through (iii))

No person or entity may use a telephone facsimile

machine, computer, or other device to send an unsolicited

advertisement to a telep hone facsimile machine, unless:

• The unsolicited advertisement is from a sender

with an established business relationship, as

defined in the Key Definitions section above,

with the recip ient; and

• The sender obtained the number of the telephone

facsimile machine through:

o The voluntary communication of such

number by the recipient directly to the

sender, within the context of such

established business relationship; or

o A directory, advertisement, or site on the

Internet to which the recipient voluntarily

agreed to make available its facsimile

number for public distribution. If a sender

obtains the facsimile number from the

recipient’s own directory, advertisement, or

Internet site, it will be presumed that the

number was voluntarily made available for

public distribution, unless such materials

explicitly note that unsolicited

advertisements are not accepted at the

specified facsimile number. If a sender

obtains the facsimile number from other

____________________

47 C.F.R. § 64.1200(f)(6)

sources, the sender must take reasonable

steps to verify that the recipient agreed to

make the number available for public

distribution,

and

• The advertisement contains a notice that informs

the recipient of the ability and means to avoid

future unsolicited advertisements. A notice

contained in an advertisement complies with the

requirements only if:

o The notice is clear and conspicuous and on

the first page of the advertisement;

o The notice states that the recip ient may

make a request to the sender of the

advertisement not to send any future

advertisements to a telephone facsimile

machine or machines and that failure to

comply, within 30 days, with such a request

meeting the requirements set out in the

Telephone Facsimile Machine Opt-Out

Requests section is unlawful;

o The notice sets forth the requirements for

an opt-out request under the Telephone

Facsimile Machine Opt-Out Requests

section below in this section;

o The notice includes:

 A domestic contact telep hone

number and facsimile machine

number for the recipient to

transmit such a request to the

sender; and

 If neither the required telephone

number nor facsimile machine

number is a toll-free number, a

separate cost-free mechanism

including a Web site address or

email address, for a recipient to

transmit a request pursuant to

such notice to the sender of the

advertisement. A local telep hone

number also shall constitute a

This provision shall not apply in the case of an unsolicited advertisement that

is sent based on an established business relationship with the recipient that

was in existence before July 9, 2005, if the sender also possessed the

facsimile machine number of the recipient before July 9, 2005. There shall

be a rebuttable presumption that if a valid established business relationship

was formed prior to July 9, 2005, the sender possessed the facsimile number

prior to such date as well.

VIII. Privacy — Telephone Consumer Protection Act

VIII–5.10 FDIC Consumer Compliance Examination Manual — August 2022

cost-free mechanism so long as

recipients are local and will not

incur any long distance or other

separate charges for calls made to

such number; and

o The telephone and facsimile numbers and

cost-free mechanism identified in the notice

must permit an individual or business to

make an op t-out request 24 hours a day, 7

days a week.

Telephone Facsimile Machine Opt-Out Requests (47 C.F.R. §

64.1200(a)(4)(iv-vi))

A request not to send future unsolicited advertisements to

a telephone facsimile machine comp lies with the

requirements under this subparagraph only if:

• The request identifies the telephone number or

numbers of the telephone facsimile machine or

machines to which the request relates;

• The request is made to the telephone number,

facsimile number, Web site address or email

address identified in the sender’s facsimile

advertisement; and

• The person making the request has not,

subsequent to such request, provided express

invitation or permission to the sender, in writing

or otherwise, to send such advertisements to

such person at such telephone facsimile

machine.

A sender that receives a request not to send future

unsolicited advertisements that complies with the

requirements in the bulleted list above must honor that

request within the shortest reasonable time from the date

of such request, not to exceed 30 days, and is prohibited

from sending unsolicited advertisements to the recipient

unless the recipient subsequently provides prior express

invitation or permission to the sender. The recipient’s opt-

out request terminates the established business

relationship exemption for purposes of sending future

unsolicited advertisements. If such requests are recorded

or maintained by a party other than the sender on whose

behalf the unsolicited advertisement is sent, the sender

will be liable for any failures to honor the opt-out

request.

____________________

47 C.F.R. § 64.1200(a)(4)(v)

A facsimile broadcaster will be liable for violations of the

provisions in this Prohibition on Use of Telephone Fax

Machine, Computer, or Other Device to Send Unsolicited

Advertisement to a Telephone Fax Machine section,

including the inclusion of opt-out notices on unsolicited

advertisements, if it demonstrates a high degree of

involvement in, or actual notice of, the unlawful activity and

fails to take steps to prevent such facsimile transmissions.

47 C.F.R. § 64.1200(a)(4)

VIII. Privacy — Telephone Consumer Protection Act

FDIC Consumer Compliance Examination M an u al — August 2022 VIII–5.11

References

Laws

Telephone Consumer Protection Act of 1991 - 47 U.S.C. 227

Regulations

FCC Regulation:

Restrictions on Telemarketing, Telephone Solicitation, and

Facsimile Advertising; Delivery restrictions -

47 C.F.R.

64.1200

Calling Party Telephone Number; Privacy - 47 C.F.R.

64.1601(e)

Definitions - 47 C.F.R. § 64.1100(h)

Declaratory Rulings

FCC Declaratory Ruling

– The hyperlink will enable you to

search FCC Declaratory Rulings.

Below are hyperlinks to some rulings:

• 2020 Declaratory Ruling

(DA 20-670, June 25,

2020)

Clarifies that the fact that a calling platform or other

equipment is used to make calls or send texts to a

large volume of telephone numbers is not probative

of whether that equipment constitutes an autodialer

under the TCPA. Instead, if a calling platform is not

capable of originating a call or sending a text without

a person actively and affirmatively manually dialing

each one, that platform is not an autodialer and calls

or texts made using it are not subject to the TCPA’s

restrictions on calls and texts to wireless phones.

The FCC also confirms that, even when a party uses

an autodialer to send a message, it may still avoid

TCPA liability by obtaining the recipient’s prior ex-

press consent.

• 2020 Declaratory Ruling

(DA 20-318, March 20,

2020)

Establishes that COVID-19 Pandemic constitutes an

“emergency ” under the TCPA and that hospitals,

health care providers, state and local health officials,

and other government officials may lawfully com-

municate information about the novel coronavirus as

well as mitigation measures without violating federal

law.

____________________

ACA Int’l v. FCC, 885 F.3d 687 (D.C. Cir. 2018).

• 2018 Report and Order

(FCC 18-177, December

13, 2018)

Addresses calls to reassigned phone numbers by es-

tablishing a single, comp rehensive database that will

contain reassigned number information from each

provider that obtains North

American Numbering Plan (NANP) U.S. geographic

numbers that will enable any caller to verify whether

a telephone number has been reassigned before call-

ing that number.

• 2015 Declaratory Ruling and Order

(FCC 15-72,

July 10, 2015)

Preserves consumers’ rights to stop unwanted ro-

bocalls, including both voice calls and texts, and

clarifies whether conduct violates the TCPA, and de-

tails simp le guidance intended to assist callers in

avoiding violations. In this Declaratory Ruling, the

FCC refers to calls that require consumer consent un-

der the TCPA as “robocalls,” “covered calls and

texts,” or “voice calls and texts.” Unless otherwise

indicated, the term “robocalls” includes calls made

either with an automatic telep hone dialing sy stem

(“autodialer”) or with a prerecorded or artificial

voice. Note that the D.C. Circuit set aside portions of

this Declaratory Ruling related to the types of calling

equipment that fall within the TCPA’s restrictions

and the approach to calls made to reassigned num-

bers.

• 2012 Report and Order

(FCC 12-21, February 15,

2012)

Establishes that prior express consent for telemarket-

ing calls must be in writing and meet certain content

and display criteria. The Order makes clear that for

informational calls, including debt collection calls,

prior express consent can be either oral or in writing.

VIII. Privacy — Telephone Consumer Protection Act

VIII–5.12 FDIC Consumer Compliance Examination Manual — August 2022

Examination Objectives

1. Determine the financial institution’s compliance with the

provision of the TCPA and the corresponding regulation,

as applicable to the institution’s product offering and

operations.

2. Assess the quality of the financial institution’s compliance

management system and its policies and procedures for

implementing the TCPA provisions and corresponding

regulation.

3. Determine the reliance that can be placed on the financial

institution’s internal controls and procedures for

monitoring the institution’s comp liance with the

provisions of the TCPA and the corresponding regulation.

4. Determine corrective action when violations of law are

identified or when the financial institution’s policies or

internal controls are deficient.

Examination Procedures

General

1. Determine whether the financial institution or a third-p arty

telemarketing firm on behalf of the financial institution

engages in telemarketing, telephone solicitation, and

facsimile advertising activities covered by the TCPA:

a. Does the institution (or a third party) place

calls for telemarketing purposes to

residential telephone or wireless telephone

subscribers that could be listed on the

national do-not-call registry or the

institution’s own internal do-not-call

registry?

b. Does the institution (or third party) employ

technology to assist in placing calls for

marketing purposes (as opposed to

manually dialing numbers)? If so:

i. Does the institution (or third

party) use an automatic telephone

dialing sy stem? (To qualify as an

“automatic telep hone dialing

system,” a device must have the

capacity to both (1) store or

produce telephone numbers to be

called, using a random or

____________________

47 C.F.R. § 64.1200

sequential number generator and

(2) to dial such numbers.)

ii. Does the institution (or third

party) place calls to any

residential line or cellular

telephone service using an

artificial or prerecorded voice to

deliver a message?

c. Does the institution (or third party) use a

telephone facsimile machine, computer, or

other device to send advertisements to a

telephone facsimile machine?

If the financial institution itself does not engage directly

(or indirectly through a third-party telemarketing firm)

in any form of telemarketing or telephone solicitation

(including the use of artificial or prerecorded voice

messages), or facsimile advertising: STOP. No further

examination for compliance with the TCPA is

necessary. Examiners should conclude the TCPA

review and document their finding according to agency

procedures. Otherwise, continue with step 2 below.

2. Obtain information pertinent to the area of examination

from the financial institution’s comp liance management

system, relating to TCPA, including historical examina-

tion findings, complaint information, training records, in-

ternal monitoring and audit materials, p olicies and p roce-

dures governing telemarketing, telephone solicitations,

and facsimile advertising.

3. Through discussions with management and review of the

documents and sy stems listed below, assess the adequacy

of the financial institution’s internal controls to ensure

compliance with the TCPA. For instance, identify proce-

dures used daily to detect errors and violations in a timely

manner. Also, review the procedures used to ensure com-

pliance when changes to bank operations or the regulatory

environment occur (e.g., applicability to text messages,

reassigned telephone numbers, calls made for “emergency

purposes”).

• Organizational charts

• Process flowcharts

• Policies and procedures, including those to mon-

itor third parties

• Disclosures and notices

VIII. Privacy — Telephone Consumer Protection Act

FDIC Consumer Compliance Examination M an u al — August 2022 VIII–5.13

• Scripts and computer programs, including docu-

mentation on computer testing and validation

• Telephone communication systems (voice, text,

and facsimile)

• Do-Not-Call lists

• Contact, tracking, and consumer consent/op t-out

databases

• Checklists/worksheets and review documents

4. Determine the extent and adequacy of the training re-

ceived by individuals whose responsibilities relate to

compliance with the TCPA, including training scope, fre-

quency, and management oversight. Review any training

materials pertaining to the TCPA and determine if the

training is appropriately tailored to the financial institu-

tion’s risk profile and covers the various aspects of the

provisions that apply to the operations under review.

5. Review financial institution’s compliance monitoring pro-

cedures and/or audit materials, including workpapers and

reports to determine whether:

• The scope of any monitoring procedures and/or

audits address all applicable provisions of the

TCPA;

• Steps are taken to follow-up on previously iden-

tified deficiencies;

• The monitoring procedures and/or audit include

samples covering all applicable types of mes-

sages and delivery channels and methods;

• The monitoring/audit work performed is accu-

rate;

• Significant deficiencies and the root cause of the

deficiencies are included in reports to manage-

ment or to the Board of Directors;

• Management responds promptly to identified de-

ficiencies and has taken corrective actions that

are effective and lasting; and

• The frequency of monitoring and audit is appro-

priate, based upon the financial institution’s risk

profile.

6. Review the financial institution’s record retention prac-

tices to determine whether documentation and evidence of

compliance is retained as required.

7. If any complaints based on the TCPA have been filed

against the financial institution or a third party used by

the institution, determine why the comp laints were filed

and how they were resolved.

Transaction Testing Procedures

The transaction testing proce dure s to be e mpl oye d de pe nd

upon the adequacy of the financial institution’s compliance

program and level of risk identified.

1. Obtain a list of telemarketing programs for products and

services that the financial institution promoted in-house or

through a third-party.

2. Review a samp le of call logs, call scrip ts, recorded call

sessions, and facsimile advertisements, observe call

center operations, evaluate automated messaging and opt-

out systems, and through testing of marketing programs

assess the institution’s level of compliance.

Examination Conclusions

1. Conclude the examination after taking the following

actions:

• Fully address identified deficiencies and

violations, if any;

• M aintain appropriate supporting workpaper

documentation;

o For the violation(s), document the root

cause by identifying weaknesses in

internal controls, audit and compliance

monitoring, training, management

oversight, or other factors; also

document whether the violation(s) are

repetitive or sy stemic.

o Document action(s) needed to correct

violations and weaknesses in the

institution’s compliance program.

• Discuss findings with financial institution

management and Board of Directors, including

adequacy of the institution’s compliance

management system, supervisory concerns and

recommendations, and violations of laws and

regulations, and also obtain a commitment from

management for corrective action(s).

• Write comments, as ap plicable, in the Report of

Examination;

VIII. Privacy — Telephone Consumer Protection Act

VIII–5.14 FDIC Consumer Compliance Examination Manual — August 2022

• Include appropriate violation write-ups; and

• Discuss proposed enforcement action, if needed.