In part two of the series on our advocacy accomplishments, Vice President and Senior Counsel of Federal Advocacy Leah Dempsey reports on the CFPB’s debt collection rule, working with the U.S. Supreme Court on key TCPA issues, and pivoting our advocacy due to the COVID-19 pandemic. Editor’s Note: This article is available for members only.
11/23/2020 10:00
By Leah Dempsey
This year ACA International members faced many challenges because of COVID-19, and ACA’s advocacy efforts focused on protecting members’ ability to continue to operate their businesses and employ thousands of people across the country. In addition to success on the legislative front covered in part one of this series, ACA also advanced its regulatory advocacy and engagement with members of Congress and industry trade groups.
Below is a summary of the top issues ACA and its members made progress on in 2020.
ACA’s Advocacy is Reflected in Part One of CFPB Debt Collection Rule
While there is no question compliance complexities remain in part one of the Consumer Financial Protection Bureau’s debt collection final rule, in ACA’s review to date, it appears that the rule supports several key issues the association has long sought clarity on, including safe harbor procedures for the use of voicemail messages and the ability to use modern forms of communication such as text messaging, email, and private messaging through social media. It also includes several clarifications requested by ACA on definitions and other areas where ACA members often see litigation under the Fair Debt Collection Practices Act.
This is most clearly seen in a comparison of ACA’s comments on the proposed rule and what is included in the final version, available here. ACA also worked closely with the U.S. Small Business Administration Office of Advocacy to garner support for changes to the notice of proposed rulemaking and supplemental notice of proposed rulemaking.
Additionally, ACA worked with members of Congress throughout the rulemaking process to educate them about the importance of the rule and highlighted some areas where clarification was needed in the final version.
This included engagement with U.S. Sen. John Thune’s, R-S.D., office regarding E-Sign modernization. In September, the Senate Committee on Commerce, Science, and Transportation voted 14-12 on a motion from Thune to advance the E-SIGN Modernization Act of 2020, Senate Bill 4159.
Sponsors including Thune and U.S. Sens. Jerry Moran, R-Kan., and Todd Young, R-Ind., introduced the legislation to modernize the law with requirements on streamlining how consumers consent to receiving electronic documents. ACA submitted several letters to the committee and worked closely with them to educate them about accounts receivable management (ARM) industry’s views on the bill.
ACA previously worked with the House Financial Services Committee Republicans to provide the only ARM-industry witnesses at a hearing focused on the rule, where they successfully educated the committee and defended the industry. In October, the top Republican on the House Financial Services Committee, Patrick McHenry, R-N.C., issued the following statement in support of the CFPB’s debt collection practices final rule: “This will provide clear rules of the road for small businesses and consumers. The CFPB is preserving important protections from harassment, while modernizing the way debt collectors can communicate. This will make it easier to identify, address, or dispute debts through 21st century communication channels that work best for both the consumer and the business. I applaud the CFPB’s work to finalize this rule.”
Several other members of Congress weighed in on behalf of the industry during the timeframe the rule was moving toward finalization, ACA previously reported.
Chairwoman of the committee, Maxine Waters, D-Calif., who originally put out a scathing statement about the proposal, has not yet commented or expressed opposition to part one of the final rule.
Congress and Federal Agencies Address Problems with Operation Choke Point
ACA has been working closely with Congress to highlight instances of unexplained bank terminations in the accounts receivables management industry. This month a new proposed rule announced by the Office of the Comptroller of the Currency (OCC) would ensure fair access to banking services for several industries—including debt collection—previously cut off during the controversial Obama-era program Operation Choke Point. This is in line with congressional efforts such as the Financial Institution Customer Protection Act of 2019 , introduced by U.S. Rep. Blaine Luetkemeyer, R-Mo., directing the agencies to take action to address the problem. ACA worked to support these efforts and will continue to support the OCC’s most recent action.
ACA Successfully Pivots Engagement in Response to the Pandemic
In addition to hundreds of meetings held by phone and Zoom, ACA also transformed its annual Washington Insights Fly-In and other events to virtual platforms. This created an opportunity for a record turnout and discussions with multiple key lawmakers, various industry trade group representatives, and other Washington insiders at the virtual Washington Insights Conference and throughout the year. ACA was pleased to host U.S. Sen. David Perdue, R-Ga., who is embroiled in one of the most important elections of the year, as well as provide opportunities for ACA members to meet with dozens of other members of Congress and congressional candidates throughout the summer and fall.
ACA Works with Coalition Partners to Brief U.S. Supreme Court on Key TCPA Issues, Pushing for Relief on the Definition of ATDS
ACA joined industry trade groups supporting Facebook’s appeal in a U.S. Supreme Court case that could have a significant impact on defining what is considered an automatic telephone dialing system (ATDS) under the Telephone Consumer Protection Act. This is a key point of contention that drives TCPA litigation, and ACA is advocating for the Supreme Court to take action to resolve this issue, and thereby limit frivolous litigation in this area for ACA members going forward.
ACA, the U.S. Chamber of Commerce, Business Roundtable, American Bankers Association, American Financial Services Association, Consumer Bankers Association, Edison Electric Institute, Insights Association, Internet Association, Mortgage Bankers Association and National Association of Federally-Insured Credit Unions filed an amici curiae brief Sept. 11 in Facebook Inc. v. Duguid, advocating for legal clarity when using modern methods to communicate with consumers.
Since the decision in ACA International v. FCC, ACA has led efforts advocating for the FCC and Congress to provide clarity surrounding the definition of an ATDS.
During the past year, ACA’s federal advocacy team has had the opportunity to appear on several panels with key decisionmakers at the FCC to represent the views of the caller community in seeking clarity on this issue. ACA also continues to lead coalition efforts with a diverse group of industries seeking TCPA reform at the FCC and in Congress.
This year was a busy, challenging, but ultimately successful year for the ARM industry and sets the stage for our work in 2021 to continue to help members succeed.
To read part one of this series click here.
Dempsey is ACA’s vice president and senior counsel of federal advocacy.