In a new report entitled “Debt Collection Communications: Protecting Consumers in the Digital Age,” the National Consumer Law Center “specifies the regulations the [CFPB] should adopt regarding when, where, how, and how often consumers can be contacted by debt collectors and creditors engaged in debt collection.” According to the NCLC, while the report “is framed around the FDCPA’s specific provisions, those provisions detail unfair, deceptive, or abusive practices that should also be prohibited for creditors who are not subject to the FDCPA.”
In November 2013, the CFPB issued an Advance Notice of Proposed Rulemaking concerning debt collection. Although the February 28, 2014 deadline for submitting comments has long passed and the NCLC previously submitted comments, the NCLC has issued the new report with the apparent goal of influencing the CFPB’s rulemaking in this area. In its Spring 2015 rulemaking agenda issued this past May, the CFPB estimated that further prerule activities, which are expected to involve the convening of a Small Business Regulatory Enforcement Fairness Act (SBREFA) panel, would occur in December 2015.
The NCLC recommends that the CFPB issue regulations that include the following:
- Limits on calls. A debt collector should not be permitted to make more than three phone calls to a consumer in a week but if the debt collector speaks to a consumer by phone, the collector should not be allowed to initiate any further phone calls that week unless the consumer requests additional contacts. Every time that the debt collector causes the consumer’s phone to ring should count as one call, whether or not the debt collector actually speaks to the consumer.
- Prohibit Calls or Texts to Cell Phones Absent Opt-In. All calls and text messages to cell phones absent consumer consent should be deemed to violate the FDCPA, even if the phone is dialed manually and the communication would not otherwise violate the TCPA. A consumer should be able to revoke his or her consent to receive calls or text messages on a cell phone either orally or in writing.
- Cease Communication Notice. Collectors should be required to (1) provide to a consumer notice of the consumer’s right to request a full cessation of communication from collectors in all communications, including oral ones, (2) cease communication when the request to cease communication is made to the collector in any manner, including by filling in a request on the collector’s website or by sending an email to the collector, and (3) cease communication in response to an oral request from the consumer or at least, when a consumer makes an oral request that communication cease, inform the consumer of the exact procedure for making a written request.
- Limit Times Allowed to Both Phone Calls and Texts. The FDCPA limits on daily calling times should apply equally to texts as they do to phone calls, with communications only allowed in hours that are convenient in all time zones where data indicates that the debtor may reside.
- Privacy Protections. Online communications that may be viewed or heard by others (such as emails sent to shared accounts) should be deemed an FDCPA violation. Debt collectors should be permitted to contact a consumer using voice mail messages, emails, or faxes only when the consumer specifically opts-in and agrees to receive those communications and all collection emails should include an unsubscribe link. A consumer should be allowed to withdraw his or her consent at any point and consent granted to the original creditor to contact the consumer by any of these methods should not be deemed to provide consent to such contact by a debt collector. The debt collector should be required to get the consumer’s consent to the use of any of these communication methods.
- Limits on Workplace Communications. Collectors who call a consumer at work should be required to (1) ask, immediately after disclosing the debt collection purpose of the call, whether it is convenient for the consumer to receive calls at work, and (2) terminate the call and make no further calls to the consumer at work if the consumer responds that calls there are inconvenient or gives any other indication during the contact that he or she does not wish to receive calls there.
The NCLC report ignores one of the most salient features of the digital age—the amount of privacy that the cellphone affords consumers. The most basic mobile phone affords the consumer a level of privacy that was unimaginable when the FDCPA was passed and the landline phone was not simply the norm, but was the only means of telephony available. If someone had invented the ideal futuristic “privacy engine” when the law was enacted it would look very much like today’s mobile devices. If a consumer wants to assure that creditors and collectors reach him discretely and privately to discuss a delinquent debt, he has no better choice than providing his mobile number.
We all implicitly understand the convenience and privacy that mobile phones afford. That’s why virtually every adult in the nation owns at least one. (At last count, there were 242,000,000 adults in the U.S and 327,000,000 cell phones.) And as anyone who has bought a movie ticket or attended church knows, it’s a simple matter to silence the ringer on any mobile phone and still receive messages. The NCLC report also ignores the fact that the millions of employees who are not allowed to use their phones at work also have no difficulty in simply turning them off without the need of any assistance from the CFPB.
The call limitations proposed by the NCLC will have the direct practical effect of depriving a significant percentage of consumers from resolving their accounts in a timely matter. Delinquent accounts, whether retained by a creditor, placed with a collection agency, collection law firm, or sold to a debt buyer, go through cycles where their status changes based on the age of the delinquency. An account that cannot get resolved sooner because the consumer could not be reached is an account that will be more difficult and more costly for the consumer to resolve later. Dialing a phone number for a fourth time in one week and having that phone ring for a few seconds before determining that it will go unanswered and hanging up is nobody’s idea of a federal offense. Yet this is precisely what the NCLC is advocating. If the authors of the NCLC report are genuinely interested in helping vulnerable consumers preserve their credit worthiness and avoid the increased costs and difficulties they face as defendants in lawsuits, or as petitioners in bankruptcy, the authors would be encouraging rules that facilitated reaching consumers by telephone—not discouraging it.