The Federal Communications Commission (FCC) has denied the petition filed by the Mortgage Bankers Association (MBA) seeking an exemption from the prior express consent requirement of the Telephone Consumer Protection Act (TCPA).

The TCPA and the FCC’s rules prohibit autodialed calls to wireless telephone numbers and other specified recipients except when made:

• For an emergency purpose;
• Solely to collect a debt owed to or guaranteed by the United States (subject to extreme limitations);
• With the prior express consent of the called party; or
• Pursuant to a Commission granted exemption.

The MBA sought an exemption of the prior express consent requirement for non-marketing, mortgage servicing calls to wireless telephone numbers that were made to determine the "reasons and nature of the delinquency," and to counsel homeowners on their "obligations and potential options." 

The FCC formulated a three-part test to determine whether to grant the MBA’s petition, namely:

• Whether the petitioner was clear that the messages would be free to the end user;
• Whether the messages were time-sensitive or there is some other compelling public interest that supports timely receipt of these calls; and
• Whether the caller could apply conditions to the exemption to preserve consumer privacy interests.

As for the first part, the FCC found that the MBA failed to show how its members could ensure that the called party was not charged for the call or that the call would not count against any plan limits on the consumer’s voice minutes or texts. The FCC noted that previous successful petitioners stated that financial institutions would work with wireless carriers and third-party service providers to ensure that recipients of the messages would not be charged for those messages.

In analyzing the second part, the FCC held that the need for the timely delivery of the mortgage servicing calls outlined by the MBA did not justify "setting aside a consumer’s privacy interests in favor of an exemption." The FCC focused on the necessity for the immediate communication in its prior exemption analyses concerning fraudulent transactions or identity theft. In contrast, the FCC noted that the various federal and state laws that require outbound mortgage servicing calls do not require telephone contact until a borrower is at least 20 to 36 days into the delinquency period. Ultimately, the FCC found that the mortgage servicing calls lacked the urgency of autodialed calls to alert consumers about a fraudulent transaction or a data breach.  Lastly, the FCC concluded that mortgage servicers have effective means, other than autodialed calls, to make contact with customers and that the subject calls could be made without using autodialer technology. 

Although the order denied the petition, it did reemphasize a few important items regarding prior express consent. The order stated that mortgage servicers are "free to autodial consumers without an exemption by simply relying on the prior express consent a consumer provides when including their wireless phone number on a mortgage application." Additionally, the order stated that mortgage servicers may also obtain "new consent by one of many available means, including by email." 

On December 15, 2016, the MBA filed an application for review of the November 16, 2016, order by the full Commission. The application for review is currently pending.