MReport August 2018

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60 | TH E M R EP O RT O R I G I NAT I O N S E R V I C I N G DATA G O V E R N M E N T S E C O N DA R Y M A R K E T THE LATEST LOCAL EDITION NMSA Seeks Clarity on TCPA Regs The National Mortgage Servicing Assocation suggests the Telephone Consumer Protection Act is outdated and not aligned with today's technology and consumer preferences. TEXAS // The National Mortgage Servicing Association (NMSA) sent a letter in mid-June to the FCC requesting clarifications and guidance re- garding implementation of regulations imposed by the Telephone Consumer Protection Act (TCPA). NMSA is a professional association created by Dallas-based company The Five Star Institute. Back in March, the U.S. Court of Appeals for the District of Columbia Circuit issued a ruling in the case of ACA International v. FCC, clarifying several issues with regard to consumer and industry rights pertaining to robocalls and texts sent to consumers. While industry groups hailed this as a step in the right direction, there are still many questions that need answering with regards to how TCPA regs apply to servicers and the financial services industry. The NMSA is a nonpartisan organization driven by senior executive representation from the nation's leading mortgage-servicing organizations, formed for the purpose of effecting progress and change on the key challenges that face the mortgage servicing industry. The NMSA's letter is in response to a call for comment solicited by the FCC after the court's ruling in ACA. "Current TCPA regulation, while admirable in motivation, is the product of an outdated regulatory response to concerns from a bygone era," said Ed Delgado, President and CEO of the Five Star Institute. "One need look no further than the lessons gleaned from the recent natural disasters to see that mortgage servicers and consumers alike have a vested interest in ensuring that the most up-to-date information regarding the status of the largest investment that many Americans will ever make—their home—is readily available via channels that are convenient and accessible. The industry is requesting a common- sense regulatory response to the realities of 21st- century technological capabilities." The NMSA letter noted that the TCPA's original intent to protect consumers from unwanted telemarketing calls was admirable. "Recently, however, the TCPA has been expanded far beyond its intended purpose and is in need of reform," the letter stated. "The TCPA, as construed now, actually harms both consumers and businesses attempting to comply with the law. Consumers are harmed because businesses face barriers in communicating vital and often legally required information using forms of communication (text, email, cell phones) that are impacted by TCPA restrictions." As such, the NMSA's letter lays out several suggestions as to how the TCPA regulations should be modified. First, it suggests that the FCC clarify the definition of an "auto dialer." The NMSA recommended that dialing from a list should not automatically constitute an auto dialer. Furthermore, the NMSA suggested that "to be considered an [auto dialer], the technology needs to generate a phone number in random or sequential order AND call the number generated." The NMSA recommended the type of device used to contact the consumer should be less of a concern than the means in which that technology is used. "The consumer doesn't know or care how they are called; they only care whether telemarketing calls are unwanted," the letter reads. "Discussion should shift from the technology being used to the purpose of the call and whether a caller has a legitimate business relationship with the consumer. As businesses attempt to reach out regarding an account, the consumer should be able to receive their messages via their preferred manner of communication." The NMSA letter also requested further clarification regarding how businesses should deal with reassigned phone numbers, pointing out that the caller has no way of knowing who will pick up the phone if they haven't been informed that the number has been reassigned. Another key area in need of clarification is the ways in which consumers may grant or revoke consent to be contacted. As the NMSA letter explained, "The TCPA states that a consumer needs to provide 'express written consent' to receive calls from a company, and, at the same time, gives the consumer the option to opt out of the consent by 'any reasonable means.' While the court upheld this aspect of the regulation, 'any reasonable means' is problematic and overly broad." The NMSA letter thus recommended the FCC provide a more concrete definition of "any reasonable means" as: "(1) a company establishing and following procedures for revoking consent; or (2) not using intentionally deceptive options of opt-out." The topic of robocalls/auto dialers was also the subject of a recent Senate hearing. Scott Delacourt, Partner, Wiley Rein LLP and a representative of the U.S. Chamber of Commerce who testified at the Senate hearing, said: "Unfortunately, the commission's implementation of the Telephone Consumer Protection Act over many years has fostered a whirlwind of litigation. Interpretations by courts and the FCC have strayed far from the statute's text, Congressional intent, and common sense, turning the TCPA into a breeding ground for frivolous lawsuits brought by serial plaintiffs and their lawyers, who have made lucrative businesses out of targeting U.S. companies." Editor's Note: The Five Star Institute is the parent company to the MReport. LOCAL EDITION GOVERNMENT extension came on March 23, included as part of the $1.3 trillion omnibus spending bill signed by President Trump. That reautho- rized the program through July 31, 2018. Following the devastating effects of Hurricanes Harvey, Irma, Jose, and Maria, the NFIP was—and still is—deeply in debt. Congress has already agreed to forgive $16 billion in debt from the program. As reported by Newsday, Sen. Schumer (D-New York) told the Long Island crowd he was work- ing on NFIP reforms alongside Senate Committee on Banking, Housing, and Urban Affairs Chairman Mike Crapo (R-Idaho) and Ranking Member Sherrod Brown (D-Ohio). Schumer said the proposed reforms should in- clude items such as updated flood maps and stabilized insurance rates for homeowners. An August 2017 CoreLogic study determined more than half of the Houston properties at high or moderate risk of flooding were not in desig- nated flood zones. According to the National Centers for Environmental Information (NCEI), natural disas- ters caused more than $300 billion in damages during 2017, a year that encompassed several damaging hurricanes, as well as wildfires and mudslides in California. The $309.5 billion total for 2017 set a new record, easily surpassing the previous U.S. annual record cost of $219.2 billion from 2005, which in- cluded Hurricanes Dennis, Katrina, Rita, and Wilma. Continued from Page 59 "Following the devastating effects of Hurricanes Harvey, Irma, Jose, and Maria, the NFIP was— and still is— deeply in debt."

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