MADISON, Wisc. — State is pleased to announce the promotion of Beth Conklin to Director of Training and Organizational Development. Joining State in 2016, Conklin previously served as an Account Executive, managing several key State accounts. 

She brings more than 25 years of credit and collections industry experience as a collector and production manager before leading training and compliance departments for two large agencies.

Conklin holds the Trainer Specialist (TSP), Collection Compliance Officer (CCCO) and Certified Instructor designations from the American Collectors Association International (ACA). She was honored by ACA with the Fred Kirschner Award in both 2013 and 2015 as well as the ACA Certified Instructor of the Year for 2012 and 2016. She has contributed to multiple magazine articles, been recognized as one of 32 Top Collection Professionals in the industry in 2014 & 2018 and serves on the ACA Education Council.

“Beth brings a multi-faceted professional background to this position,” said Tim Haag, State’s president. “She began her career on the phone as a collector and has progressively gained production experience in addition to being a recognized expert in revenue cycle compliance and training. Having spent the last four years as the primary point of contact for many State clients, she is perfectly positioned to help the State team even better serve our clients and their patients.”

“I am looking forward to combining my experience in training, compliance, client services and patient-friendly collections to help our entire team provide outstanding service to healthcare providers and their patients,” said Conklin.

About State

State improves the financial picture for healthcare providers by delivering increased financial results while ensuring a positive patient experience. Rooted in a tradition of ethics, integrity and innovation since 1949, State uses data analytics to drive performance and speech analytics with ongoing training to ensure patient satisfaction. A family-owned company now in its third generation of leadership, State assists healthcare organizations with services spanning the complete revenue cycle including Pre-Service Financial Clearance, Early Out Self-Pay Resolution, Insurance Follow-Up and Bad Debt Collection. To learn more visit: www.statecollectionservice.com.

Of all the items proposed in the Consumer Financial Protection Bureau’s (Bureau or CFPB) Notice of Proposed Rulemaking (NPRM), the ability to request advisory opinions was one that created a lot of hope for debt collectors. In a world where collection organizations are constantly bombarded with compliance questions—mainly due to a prolific and creative plaintiffs’ bar—this section felt like a bright light. However, with the changes the Bureau made in the final rule, is the advisory opinion option now more of a pipe dream?

In the NPRM, the advisory opinion section of Appendix C specifically listed to whom debt collectors should send requests and pertinent information. In contrast, the final rule states that debt collectors may submit requests for advisory opinions through one of the Bureau’s already-established advisory opinion programs.

Seems like a harmless change of wording, right? Not quite.

The CFPB’s pilot advisory opinion program 

In June of this year, the Bureau launched its pilot advisory opinion program, which is likely the resource the final rule intends debt collectors to use. In its introduction of the program, the Bureau provides a list of factors that will be considered to determine whether it would accept a request for an advisory opinion.

To determine whether an advisory opinion is appropriate, the CFPB will weigh certain factors, such as:

• The issue in question has been noted during prior CFPB examinations as one that could benefit from regulatory clarity;
• The issue is of substantive importance or impact, or whose clarification would provide significant benefit; 
• The issue relates to an ambiguity that has not already been addressed by the CFPB through an interpretive rule or other authoritative sources. 

Issues that factor against the appropriateness of an advisory opinion include:

• That the issue is subject to an ongoing investigation or enforcement action;
• That the issue is subject to ongoing rulemaking;
• The issue is better-suited for the notice-and-comment process;
• The issue could be addressed through a compliance aid; 
• There is clear precedent already available to the public on the issue.

What does this mean for debt collection advisory opinions?

If the pilot program is how the Bureau intends debt collectors to request advisory opinions, it appears that the industry has an uphill battle. In light of the final rule and the process used to get here, several of the factors weigh against the Bureau accepting debt collector requests.

First, we now have this massive “interpretive rule” on debt collection that took the Bureau 7 years to sort-of complete (with the remainder coming in December 2020). This was a long and arduous process for the Bureau, with a lot of back-and-forth between the agency, the industry, and consumer advocates. In other words, the Bureau already expended a lot of effort on providing us the final rule, and this might weigh against putting further effort into debt collector advisory opinion requests unless it is something desperately in need of clarification.

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Second, despite the voluminous feedback from industry, which informed the Bureau that its proposed rule was ambiguous in certain respects and included many requests for further clarity, the Bureau went ahead and released the final rule as we now have it—clarifying some things but making others even more confusing than they were before. If this was the Bureau’s response to requests for further clarity, can we rely on the advisory opinion program to do better? Will the Bureau think that they already responded to these requests raised in the rule comment period, and not want to answer them again?

Third, what if the CFPB decides that enforcement actions are the way to go with some of these issues? Take, for example, the meaningful attorney involvement issue. There was a whole section in the NPRM on meaningful attorney involvement that was deleted from the final rule. However, the CFPB mentioned that it believes the FDCPA provides the groundwork for the concept of meaningful attorney involvement, and the Bureau does not anticipate a stop to the lawsuits on the issue (p. 361 of the final rule)—could they also mean their own enforcement lawsuits?

We all very clearly remember when Weltman, Weinberg, & Reis (WWR) successfully defended itself against the CFPB’s enforcement action related to this issue back in mid-2018. The win was a landslide: not only did the jury find in WWR’s favor, so did the judge in a separate decision. Shortly after this loss, the CFPB filed another lawsuit against a different collection law firm on this issue.

In conclusion, only time will tell

At the end of the day, we’ll find out how welcoming the Bureau is to industry advisory opinion requests once the first such requests are submitted. While the final rule provides some clarity, there are also significant deviations from what was proposed in the NPRM, and there are now many open questions waiting for answers.

New York, N.Y. — The national charity, RIP Medical Debt, the only U.S. charity to pioneer medical debt abolishment across the U.S., has announced that its co-founder, Jerry Ashton, will be stepping down from his position as Director of Education and Engagement while remaining on the board of directors.

“I feel blessed to have had this extraordinary opportunity over the past almost seven years to be surrounded by a team of amazing people and to help RIP realize its goals,” Jerry said. “I am sure their future efforts will eclipse our earlier successes ten-fold over the coming years.”

The genesis of RIP Medical Debt, a national nonprofit which leverages donated funds to erase billions of dollars of medical debt for millions of struggling Americans, lays squarely at Jerry’s feet.

A former Navy journalist and veteran, Jerry’s interest was piqued by crowds gathering in Zuccotti Park during the early days of the Occupy Wall Street movement. After learning about one working group’s desire to pay off medical debts for struggling people as an act of social good, an idea started to germinate. Instead of collecting on unpayable medical debt, why not focus on abolishing that burden instead?

With four decades of experience in the credit and collections industry, he was an excellent candidate to act as a “change agent;” many of his customers over those years included healthcare professionals and practices.

Jerry enlisted his friend and fellow industry executive, Craig Antico, to join him in providing technical and advisory support to the Occupy group. As the attention of the occupiers shifted and the movement dissipated, Jerry and Craig committed to address the medical debt issue on their own. In 2014, they partnered in incorporating RIP Medical Debt as a 501(c)(3) charity. 

“Without Jerry, RIP Medical Debt simply wouldn’t exist. I – and I’m sure the millions of Americans that have opened a yellow RIP envelope in grateful disbelief – thank Jerry for his service and vision,” shares RIP’s Executive Director Allison Sesso. 

From helping John Oliver abolish $15 million of medical debt on his HBO Show, Last Week Tonight in 2016 to the nonprofit wiping out $3 billion to date in unpayable medical debt, Jerry’s inspiration has helped create a strong and lasting institution for the organization’s loyal donors and major corporate partners.   

About RIP Medical Debt

Since being founded in 2014 by two former debt collectors, RIP Medical Debt has acquired, and abolished, more than $2.5 billion of oppressive medical debt, helping over 1.5 million individuals get out from under the burden of crushing medical debt. On average, one dollar donated to RIP forgives $100 of medical debt, empowering every donor to have an outsized impact. To learn more, visit https://ripmedicaldebt.org/ 

With the Consumer Financial Protection Bureau’s (CFPB or Bureau) release of its final debt collection rule on Friday, everyone is wondering the same thing: how does the final rule compare to the proposed draft included in the Notice of Proposed Rulemaking (NPRM)? We at insideARM have two resources for you:

1. We created this redline document that compares the language of the final rule to the rule proposed in the NPRM.
2. We are hosting a webinar today at 1PM Eastern focusing on what changed, what didn’t, and what to do about it. You can register here. 

The redline document is a very interesting read. You can see exactly what the CFPB changed (including specific word choices), kept the same, reserved, or deleted altogether. Check out some of the highlights below.

Editor’s Note: We are, admittedly, still slogging through the 653-page document, so the information below is based solely on the redline of the actual rule language, we’ll provide updates if we later find that the commentary clarifies some of these items.

Email Procedures—Simplified, or Not?

Remember that really long section of the NPRM that outlined reasonable procedures for emailing disclosures, as well as alternative procedures to do the same? This NPRM section talked a lot about the E-SIGN act, types of things that need to be included in the subject line of an email, and so forth. 

This entire section was deleted. Instead, the final rule simply states that E-SIGN must be followed.

The question then remains: will this be something that the Bureau will address in more detail in the December rule, or is the Bureau bowing out of trying to provide complex procedures and, instead, letting debt collectors figure it out themselves—not providing more clarity as we had all hoped for?

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The Know/Should Know Standard for Employer Email

While the Bureau kept the know/should know standard in certain sections of the final rule, it very clearly relaxed the standard as it applies to whether or not a debt collector knows they are emailing a work address for the consumer. The final rule maintains its restrictions against contacting a consumer at work if it’s inconvenient, and it provides certain restrictions about which domains a debt collector can email (e.g., they can use emails with publicly-available domains, such as gmail.com, unless they know that it is provided by an employer), but the Bureau is drawing a line in the sand when it comes to knowing whether an email is work-related.

Now, instead of knows/should know, the standard is simply “knows.” The Bureau adds in its commentary that it does not expect debt collectors to do a line-by-line, account-by-account manual review of email addresses to check if they are employer-provided.

Limited-Content Messages: Only for Voicemails, Not for Texts/Emails

Who would have thought that a single word could completely change the way a section of a rule reads and applies? For the limited-content message (LCM) section of the rule, that word is “voicemail.” In the NPRM, the LCM section referenced only “messages,” whereas the final rule specifies that an LCM is a “voicemail message.” That means that LCMs for text messages and emails are dead.

However, the final rule allows the debt collector to leave its company name in the LCM so long as the name does not indicate that the company is in the debt collection business.

Some Fun and Peculiar Word Change Choices

Sometimes, word choices are the most important thing—especially when it comes to laws and regulations, which are scrutinized with fine-tooth combs by attorneys on all sides of the aisle. With the redline document, it’s easy to see specific areas where the Bureau re-thought or clarified provisions by their change in word choice. Some examples include:

• Verification of Debt: When it comes to a debt collector responding to verification requests, the rule now uses the term “sends verification” rather than “provides verification.”
• Inconvenient Time/Place: Sometimes, it’s hard to tell a consumers’ location based on information in the account placement. In the NPRM, the Bureau states what the debt collection should do if it is “unable to determine” the consumer’s location. The final rule changes this terminology—the rule now states what the debt collector should do “if the collector has conflicting or ambiguous information” about the location of the consumer. 
• Sales/Transfers/Placements: The Bureau clarified the language it used when dealing with transferring or placing accounts. Now, instead of just “transfer” or “placement,” we have “transfer for consideration” and “placement for collection.”

Very Clear Signs that the Final Rule is a Living Document

The Bureau included several little nuggets that suggest they are open to reviewing and providing further clarity and safe harbors as they become necessary. For example, in the section regarding overshadowing, the final rule adds that Bureau “may provide by regulation a safe harbor for debt collectors when they use certain Bureau-approved disclosures.” Does this mean that the industry might get some safe harbor settlement offer language at some point in the future? We sure hope so, seeing as settlement offers tend to be a target for litigation by “frequent filer” plaintiffs’ counsel.

There’s the whole advisory opinion section too, but the full scope of that will be addressed in a future article.

Validation Notice—Eerily Missing (But We Know Its on the Way)

As the CFPB notes early in the final rule commentary, it intends to release an additional rule in December 2020 that will deal specifically with disclosures. One such reserved disclosure is the validation notice, including the model form that we saw in the NPRM. While we know that rules related to this are coming in the future, it is very eery to see the entire section on the validation notice redlined out. 

Effective Dates—Will They Be Staggered?

One other interesting thing to note is the concept of effective dates. The final rule released on Friday states that it will be effective one year from publication in the Federal Register (this has not yet happened, likely to come this or next week). However, it’s important to note that this rule does not include the sections on disclosures. Will the December rule have a similar one-year-from-publication effective date? If so, will the implementation periods be staggered? It’s fine either way, but it’s something to be aware of.

CHESAPEAKE, VA — Spring Oaks Capital, LLC has hired Catherine Calko as Director of Audit and Compliance.  In this role, Catherine will lead the day to day operations of our audit and compliance programs and report to General Counsel and Chief Compliance Officer Andrew Blady.  Catherine, an attorney, joins Spring Oaks Capital after an extensive career in compliance with both Bank of America and Wells Fargo.  Catherine also served as an Assistant Attorney General with the Ohio Attorney General’s Office. Catherine earned her law degree with the University of Akron and her undergraduate degree at Bowling Green. Catherine is a frequent panelist with the National Creditors Bar Association speaking on various industry compliance issues.    

“I am excited and honored to join the team at Spring Oaks Capital.  I look forward to working with the rest of the company’s leadership as we grow to one of the premier tech-oriented debt buying companies in the country” stated Ms. Calko.  Mr. Blady stated, “We are thrilled to add this talented individual to our team as part of our commitment to have best in class compliance.”   Spring Oaks Capital’s Chief Operating Officer Jason Collins remarked, “I couldn’t be more excited to add Catherine to our talented team.  Catherine and I worked closely together for many years. Her knowledge and experience will be invaluable as we continue to build out an industry best compliance program.”

About Spring Oaks Capital, LLC

Spring Oaks Capital is an innovative and technology-focused consumer debt purchasing company spearheaded by four of the most credible industry executives, who hold decades of experience at some of the largest debt buyers, collection firms, and financial institutions in the United States. Leveraging an innovative portfolio acquisition strategy, leading-edge technology, and a differentiated culture, Spring Oaks Capital is poised to overhaul this legacy sector by building an innovative, refreshing and equitable vision that provides positive optionality around consumer debt obligations.

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Seven years, two presidents, and three agency directors later, the Consumer Financial Protection Bureau’s (CFPB) long-awaited final debt collection rule—also known as Regulation F—is finally here. The CFPB released the final rule this afternoon. Below is a quick summary of hot-button issues for the industry.

Implementation

Before getting into the nitty-gritty of the rule’s content, there’s a more pressing question that should be answered first. By when does your organization have to be compliant with the new rule? According to the document, the rule becomes effective one year after it is published in the Federal Register. insideARM will monitor the Federal Register and provide an update when the rule is officially published. 

Electronic Communications

One of the most-discussed—and most debated—topics from the Notice of Proposed Rulemaking (NPRM) was the groundwork laid to allow debt collectors to communicate with consumers through electronic means. This was applauded by the industry, as it is a way to reach consumers through their preferred communication medium, given that the CFPB itself found the majority of consumers prefer to be contacted via email.

So, what does the final rule look like in regards to email and text messages? They are allowed, and procedures are laid out. And, to send required disclosures via electronic methods, there does seem to be talk of the E-SIGN Act. We’ll provide further detail on electronic communications once we’ve had a chance to dig deeper into it.

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Model Validation Notice

In the NPRM, the CFPB provided a model validation notice form which, if used, would act as a safe harbor for debt collectors. The thought behind the model notice was appreciated—finally, something debt collectors can implement to protect them from what has been a constant rush of FDCPA lawsuits alleging that the validation letter violated the FDCPA in one way or another. Digging into the weeds, however, many industry groups pointed out the practical issues with the model notice (including the Consumer Relations Consortium, whose comments can be found here).

So, what did the CFPB do with the model notice? Were industry concerns taken into account? Well, we don’t know. The CFPB punted the issue, stating that it will release another final rule specifically related to disclosures in December 2020. 

Contact Caps With a Twist

The CFPB caused ripples on both sides of the aisle with its NPRM regarding how often debt collectors may communicate with consumers. The industry frowned on the telephonic communication caps, but applauded the ability to freely use electronic means of communication. Consumer advocate frowned all around: they didn’t like the contact caps (too many calls) nor the lack of a cap for electronic communications.

What was the outcome? The CFPB issued their proposed call cap: 7 calls within a 7 day period, and then once every 7 days after that. However, the cap is no longer a bright-line rule. There is now a rebuttable presumption—7 or fewer calls is presumed lawful, more than 7 calls is presumed unlawful, but either way, the presumption can be rebutted by evidence of harassment.

As for electronic communications, the CFPB did not extend a specific numerical limit of communications. Instead, the standards of prohibitions on harassment and abuse apply.

Time-Barred Debt Disclosures

Initially left as a placeholder, the CFPB released a supplemental NPRM specifically related to time-barred debts. Everybody wondered if the time-barred debt provision would be ready in time to be released along with the remainder of the final rules. Ends up, it wasn’t. The time-barred debt portion of the rules is set to be released at a later date.

insideARM Perspective

It’s hard to believe that we are actually here, final rule in hand. It’s been one heck of a journey, and a tremendous effort on the part of the CFPB—and all those who provided input throughout the process—to get to this point.

Ultimately, the rule does (for the most part) what the industry has wanted for a long, long time: it lays out clear rules of the road for debt collectors. Or, at least, clearer rules of the road than we’ve had before.

The iA Institute, via its leadership of the Consumer Relations Consortium, has been honored to participate in the process of gathering stakeholders, engaging in meaningful dialogue with CFPB representatives and consumer advocates, giving thoughtful consideration to dozens of issues, and proposing solutions. We extend our appreciation to our many members who devoted countless hours over the last 7 years to arrive at this milestone. We came a very long way.

Editor’s note: This article is provided through a partnership between insideARM and Squire Patton Boggs LLP, which provides a steady stream of timely, insightful and entertaining takes on TCPAWorld.com of the ever-evolving, never-a-dull-moment Telephone Consumer Protection Act. Squire Patton Boggs LLP—and all insideARM articles—are protected by copyright. All rights are reserved. 

Among the seemingly hundreds of controversies brewing in TCPAWorld, one asks whether a consumer can face a counterclaim for collection of a debt in a TCPA suit brought against a loan servicer or collector for purportedly illegal calls. While the issue seems straightforward—the debtor owes the money and the defendant should be able to collect (or at least offset) the amount owed on the contract in the TCPA suit—many courts have refused to permit such counterclaims fearing that offensive action by a TCPA defendant might somehow “chill” consumer protection lawsuits.

Weird.

Well, in a recent case, the Northern District of California applied the “majority rule” and common sense (IMO) by allowing a counterclaim to proceed. In Nalan v. Access Fin., Case No. 5:20-cv-02785-EJD, 2020 U.S. Dist. LEXIS 198836 (N.D. Cal.  October 23, 2020), the Plaintiff (allegedly) stopped paying for his car and received collection calls as a result. The Plaintiff sued the collector, who responded with a counterclaim for the $1,778.00 it was (allegedly) owed.

The Plaintiff responded by moving to dismiss the counterclaim asserting a lack of jurisdiction. The Court was unpersuaded and found that the debt and the phone calls arose out of the same nexus of operative facts:  

Here, both Plaintiff’s and Access’ claims are related to the underlying automobile loan debt owed by Plaintiff to Access. These claims may be fairly classified as part of the same “case or controversy” and therefore, the Court may exercise supplemental jurisdiction over Access’ counterclaim pursuant to 28 U.S.C. § 1367(a).

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This is a great case to keep handy as Defendants often disdain the prospect of facing a lawsuit from a consumer that has failed to pay their obligations and yet is looking for a windfall under the TCPA. At least pursuing a counterclaim allows the parties to equalize their position between one another and reduce all burdens and obligations to a single judgment. Plus, this tactic can be a great class action killer. 

Editor’s note: This podcast episode is provided through an exclusive industry partnership between insideARM and Clark Hill, PLC. Podcast host Joann Needleman, a leading financial services attorney and member of the iA Legal Advisory Board, provides bite-sized hot topics in the consumer finance space. ClarkHIll content—and all insideARM articles—are protected by copyright. All rights are reserved.  

Show Notes: 

Data is driving the expansion of financial services. But how do you build data sets that are unique for each financial institution?

Scott Ferris, CEO of Attunely, Inc stops by Clark Hill’s Credit Eco to Go to dissect and demystify the world of big data. The goal is to achieve efficiency and effectiveness by giving machines access to the data so they can learn for themselves.

Scott reminds us that data cannot solve every problem but historical data is a good predictor of future consumer response. “The financial services industry is just going through the same evolution that other vertical industries have gone through” when it comes to the consumer experience. Ensuring that the data is used in the right way and for the benefit of the consumer will be the key. 

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DISCLAIMER – No information contained in this Podcast or on this Website shall constitute financial, investment, legal and/or other professional advice and that no professional relationship of any kind is created between you and podcast host, the guests or Clark Hill PLC. You are urged to speak with your financial, investment, or legal advisors before making any investment or legal decisions.

 Funk Game Loop by Kevin MacLeodLink: https://incompetech.filmmusic.io/song/3787-funk-game-loopLicense: http://creativecommons.org/licenses/by/4.0/

Editor’s Note: This article was originally published on the Maurice Wutscher blog and is republished here with permission.

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The Consumer Financial Protection Bureau released its Advance Notice of Proposed Rulemaking (ANPR) on Oct. 22, seeking comment on 46 questions in nine categories surrounding consumer access to financial information under section 1033 of the 2010 Dodd-Frank Act (15 U.S.C. § 5533).

Section 1033 entitled “Consumer Rights To Access Information” provides that “a covered person shall make available to a consumer . . . information in the control or possession of the covered person concerning the consumer financial product or service that the consumer obtained from such covered person” and authorizes the Bureau to make rules concerning consumer access to such data.

The ANPR follows the CFPB’s symposium earlier this year on consumer access to financial information. In a report summarizing the symposium issued in July, the Bureau pointed out that consumers’ access to “their financial records in electronic form empowers them to better monitor their finances” and “their ability to permission a third party to access those records may enable consumer-friendly innovation in financial services.” Particularly, the growing use of consumer data aggregators can lead to “new products and services aimed at making it easier, cheaper, or more efficient for consumers to manage their financial lives.” But the report also emphasized that this expansion in access to and distribution of consumer financial data “raises a number of concerns, particularly with respect to data security, privacy, and unauthorized access.”

The ANPR’s 46 questions are grouped into nine categories: (1) costs and benefits to consumers and covered persons; (2) competitive incentives; (3) the development of standards; (4) the scope of access to consumer financial information; (5) consumer privacy and control; (6) existing law impacting the field; (7) data security; (8) accuracy; and (9) “other information.” The categories underscore the broad scope of section 1033 and the impact any rules could have on the consumer financial services industry.

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The release of the ANPR is just the first in the Bureau’s rulemaking process and, having participated in Bureau rulemaking activities over the past decade, it may be years before rules are released, if at all. But the impact of any rules would be significant. Aside from defining the nature and scope of consumer data, how that data is aggregated, disseminated, and protected are all on the table. While the subject matter appears to be concerned with developing technologies and services (like FinTech and RegTech), any rule would also impact how consumer data is collected and used by the mature consumer financial services industry.

That industry is broader than one may think. While it certainly includes traditional lenders like banks, credit unions and non-bank lenders, a “covered person” under the Dodd-Frank Act is much more and includes “any person that engages in offering or providing a consumer financial product or service” and affiliates who act as service providers to the covered person. The Bureau has an expansive interpretation of the types of persons that fall within this definition as well as what constitutes a consumer “financial product or service.” For example, the definition includes “collecting debt related to any consumer financial product or service.”

1. What Information Can a Consumer Access?

Several questions posed by the ANPR concern the scope of “access rights” to consumer financial information. Particularly whether certain data should not be subject to consumer access. Such consumer information can intersect with protected “confidential commercial information,” data required by law to be kept confidential or information collected to prevent fraud “or other illegal conduct.”

Section 1033(d) of the Dodd-Frank Act provides that “[t]he Bureau, by rule, shall prescribe standards applicable to covered persons to promote the development and use of standardized formats for information, including through the use of machine readable files, to be made available to consumers under this section.” The Bureau’s “standard-setting” questions request comments on the use and development of standards for access to and delivery of consumer financial information.

2. Intersection With Existing Law

In the context of privacy, the ANPR notes that the Gramm–Leach–Bliley Act, Fair Credit Reporting Act, Electronic Fund Transfer Act and the regulations promulgated under each all have privacy components, and “the Bureau might need to resolve potential stakeholder uncertainty with respect to application of the [] laws and their implementing regulations.” It adds in a footnote that the while the Bureau has “certain authorities” under the GLBA, it “has no supervisory, enforcement, or rulemaking authority with regard to the Act’s data security provision.”

3. Privacy Expectations and the Movement and Sharing of Information

The Bureau is also seeking comments on the extent to which consumers “understand the actual movement, use, storage, and persistence of authorized data,” and how this may “align with reasonable consumer expectations or preferences, including privacy expectations or preferences,” among other things.  This leads to the question whether the Bureau should “consider placing any restrictions on the movement, use, storage and persistence of authorized data, and if so, what restrictions and why?”

4. Data Security

In the area of data security, several questions seek comment on existing law and how these laws mitigate risk in the context of consumer financial information. Notably, the Bureau asks if it does issue a rule, “how should that rule take appropriate account of data security concerns?”

Comments are due 90 days after the date the ANPR is published in the Federal Register.

Editor’s note: This article is provided through a partnership between insideARM and Squire Patton Boggs LLP, which provides a steady stream of timely, insightful and entertaining takes on TCPAWorld.com of the ever-evolving, never-a-dull-moment Telephone Consumer Protection Act. Squire Patton Boggs LLP—and all insideARM articles—are protected by copyright. All rights are reserved.

Well, it’s official. Former Judge Amy Coney Barrett—previously of the Seventh Circuit Court of Appeals—is now Justice Amy Coney Barrett of the U.S. Supreme Court.

You already know the headline: in her previous role on the Seventh Circuit Court of Appeals, then-Judge Barrett wrote a critical opinion addressing the TCPA’s ATDS definition and determined that the TCPA only applies to random or sequential number dialers. This legalized the vast majority of so-called “robocalls” in the Seventh Circuit’s footprint and freed callers from the poorly-drafted statute.

Now, as a Supreme Court Justice, one of Barrett’s first challenges will be to decipher precisely the same portion of the statute as part of Facebook’s huge SCOTUS appeal of the TCPA’s ATDS definition.

At issue is whether the TCPA applies to any call made “automatically” from a list of stored numbers, or only those dialers that have the capacity to dial randomly or sequentially. As I recently explained, this is a classic “pathos vs logos” situation—the statute plainly seems to require random or sequential number generation, yet the near-universal disdain for robocalls might lead to a results-based analysis (like the one the Supreme Court recently engaged in to save the TCPA a mere three months ago when they reviewed the government debt exemption). 

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In our latest episode of the  Unprecedented [VIDEO] Podcast, I had the opportunity to ask Plaintiff’s lead counsel—Sergei Lemberg—how he felt about arguing this critical issue back to the same Judge who ruled on this very issue in Gadelhak.  You’ll get to hear his answer TOMORROW right here.

The ascension of Justice Barrett is the latest in a string of seesaw developments in the TCPA ATDS saga, with momentum swinging wildly in favor of one side or the other these last three months. The latest big development was the arrival of Bryan Garner—co-author with Justice Scalia (Justice Barrett’s mentor) of Reading Law, one of the most persuasive works on statutory interpretation— onto the consumer lawyer’s team urging an expansive read of the TCPA. And, of course, just last week nearly 40 state AGs likewise joined the fray in favor of an expansive TCPA read.

But with Justice Barrett arriving on the bench, is Facebook now playing with a stacked deck? Certainly Justice Barrett—having already spoken on this issue—has a clear and obvious lean. Yet the trendy Beltway mistrust for “Big Tech” coupled with the fact that the conservative wing of the Court (now its majority) previously split on whether to keep the TCPA on the books, suggests that this result might not yet be baked.

It all adds up to high drama in the high stakes TCPAWorld ATDS battle.