Several circuit courts of appeal in recent months have issued rulings that are at odds with credit union-supported positions in Telephone Consumer Protection Act (TCPA) cases and regulatory proceedings involving the use of automated telephone dialing systems (ATDS). CUNA has called on Congress and the Federal Communications Commission in multiple forums to issue guidance allowing credit unions to contact members using ATDS without facing TCPA liability.

Last week the 6^th Circuit Court of Appeals, in Allan v. Pennsylvania Higher Education Assistance Agency, ruled that ATDS calls to a stored list of numbers can violate the TCPA’s prohibition against the use of autodialers to make certain calls or texts without consent. This decision aligns with recent decisions by the 9^th and 2^nd Circuit Court of Appeals, but splits with decisions in the 7^th and 11^th Circuits.

The case decided by the 9^th Circuit Court of Appeals, Duguid v. Facebook, which also concerns the definition of an “automated telephone dialing system” under the TCPA, is currently pending before the U.S. Supreme Court. CUNA filed an amicus brief asking the Supreme Court to take the case, noting the Circuit Court split and that the current structure of the TCPA is harming credit union members by hindering the flow of important information.

The 2^nd Circuit covers Connecticut, New York and Vermont; the 6^th Circuit covers Kentucky, Michigan, Ohio and Tennessee; and the 9^th Circuit covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington and Guam.

CUNA’s legal staff advise credit unions in those states to review their use, if any, of automatic dialing equipment to call or text members.  These adverse decisions coincide with a slight uptick in TCPA lawsuits filed against credit unions, including three recently filed at the federal level.