WASHINGTON, D.C. -

The American Financial Services Association responded to a petition asking that the Federal Communications Commission rule that finance companies are not liable when they call a wireless number for which they have prior express consent to call or text, but which has been reassigned to a different subscriber.

AFSA made the plea in an effort to initiate a rulemaking response to these petitions this fall.

In the letter to the FCC, AFSA executive vice president Bill Himpler recapped that the Telephone Consumer Protection Act (TCPA) prohibits autodialed non-emergency calls to wireless numbers without the prior consent of the called party.

AFSA agreed with the petitioner that there should be an exception to, or a safe harbor from, liability in these instances provided the caller updates its records and ceases calls to that wireless number within a reasonable time period after being informed that the number has been reassigned from the consenting consumer to another person without the caller having notice or knowledge of the change.

Himpler contends the FCC has received many petitions over the last several months regarding the TCPA.

“AFSA members comply with the requirements of the TCPA that they obtain express consent from the subscriber to a cell phone service before calling their assigned number,” Himpler said. “The calling party has notice of the number assigned to the party being called and their expressed consent to being called.

“However, when a number is reassigned and no notice thereof is given to the party to whom express consent was granted, it is unfair to penalize a caller who believes in good faith before making a call that it has complied with the TCPA,” he continued.

“Congress enacted the TCPA intending to protect consumers from undesired calls on their cell phones, and the desires of consumers are expressed when they consent to receiving calls from a particular party. However, Congress did not intend to set a trap for those who comply with the law,” Himpler went on to say.

Himpler also insisted that penalties of up to $1,500 per violation of the TCPA have provided plaintiff’s attorneys with fodder for lawsuits that “enrich” the attorneys rather than compensate their clients.

“Instead of receiving compensation from class action litigation, consumers will experience rising costs as businesses struggle to make up the massive legal fees incurred during TCPA litigation,” he said.

Himpler emphasized how critical this issue is for the FCC to consider.

“An exception or safe harbor is crucial because there is no way for the caller to know that the number has been reassigned, unless notified by the consumer. It is unreasonable to hold companies liable for a TCPA violation when the company has done all it can to comply with the law,” Himpler said.