The CFPB has released frequently asked questions on the limited-content message and call frequency provisions of its debt collection rule (Regulation F) that becomes effective on November 30, 2021. While many of the FAQs repeat what is stated in the rule, they do provide some clarifying information which we highlight below.
Limited content message (LMC). As a general matter, the FAQs make clear that any deviance from the LMC “script” will result in the message not being a LMC and in the loss of the safe harbor protection from unauthorized third-party debt disclosure claims. More specifically, the FAQs indicate:
- If a call drops off or is otherwise interrupted while a debt collector is leaving a LMC, the voicemail is not a LMC because the collector did not deliver the entire LCM “script.” The partial message is not, however, a “collection communication” within the meaning of the FDCPA because it does not contain information about a debt. But because the partial message is an attempt to communicate about the debt, it still counts toward the “7-in-7” call attempt limit.
- A debt collector can leave a LCM using a prerecorded message but should be mindful that the message is subject to TCPA requirements for prerecorded messages.
- A Zortman voicemail is not the same as a LMC and therefore does not have the safe harbor from the prohibition against unauthorized third-party debt disclosures.
- Unless otherwise required by state law or licensing regulations, a collector does not have to include its full legal name or registered DBA in a LCM (and may want to avoid doing so if that full name or DBA would reveal the caller is a debt collector). When leaving a LCM, a collector can use abbreviations in its business name so its name does not indicate that it is in the business of collecting debts and the use of abbreviations will not violate the FDCPA requirement to meaningfully disclose the caller’s identity. However, if a state law or licensing regulation requires a collector to use its full legal name or registered DBA when leaving messages for consumers and use of the legal name or DBA indicates that the collector is in the business of debt collection, the voicemail would not be a LCM with a safe harbor from the prohibition against third-party communications.
- A LCM retains its status as a LCM despite the fact that a consumer determines that the caller is a debt collector by researching the business name used by the collector or recognizing the LCM as a communication that generally comes from debt collectors.
Call Frequency. As a general matter, the FAQs make clear that adhering to the “7-in-7” call limit and the 7-day waiting period creates no more than a rebuttable presumption that the collector has not violated the specific FDCPA prohibition against repeated or continuous phone calls or the general FDCPA prohibition against engaging in harassing, oppressive or abusive conduct based solely on the frequency of calls. More specifically, the FAQs indicate:
- Incoming calls from a consumer do not count when determining whether a debt collector has complied with the “7-in-7” limit. However, if the collector has a conversation with the consumer about a debt, the conversation will trigger the 7-day waiting period before placing future calls to that consumer unless the consumer asks to be called back sooner (thereby providing consent that lasts 7 days to place that single return call in response to the consumer’s express request.)
- Consumer consent to a call that would cause the collector to exceed the “7-in-7” limit or make a call before the expiration of the 7-day waiting period lasts only for 7 days even if the consumer agrees to a longer period. Conversely, that consent does not last 7 additional days if the consumer requests a call back during a shorter period of time.
- The presumptions created by the “7-in-7” limit and 7-day waiting period only apply to telephone calls and voicemails left for consumers and not to other media types such as text messages, email, in-person interactions, or social media. Collectors are reminded that the FDCPA’s general prohibition against harassing, abusive, or oppressive communications applies to all communication channels.
- If a debt collector calls a consumer to discuss multiple debts but the consumer does not answer the call and the collector does not leave a voicemail, the debt collector can count the unanswered telephone call as an attempt in connection with the collection of one particular debt (unless an exclusion applies) and does not have to count it as a call attempt as to each debt. (This reinforces the principle that the “7-in-7” limit and the 7-day waiting period apply per debt account and not per consumer.) While not directly stated in the FAQs, it should be noted that if the collector does reach the consumer and discusses multiple debts or mentions multiple debts in a voicemail, the call would count against each account that was discussed or mentioned.
- Factors that can rebut the presumptions of compliance even when a collector adheres to the “7-in-7” limit and the 7-day waiting period include “rapid succession calls” (e.g., 2 unanswered calls to the same telephone number within a short period of time or 2 voicemails being left within a short period of time at the same telephone number), “highly concentrated calls” (e.g. 7 calls to or 7 voicemails left at the same telephone number in one day), as well as concentrating calls “on days that may be less convenient for the consumer (such as Sundays or holidays).”
- In contrast, factors that can rebut a presumption of a violation when a collector exceeds the “7-in-7” limit or makes a call before the expiration of the 7-day waiting period include that the call was: (1) made to comply with or as required by applicable law (e.g., a call made to inform the consumer of mortgage loss mitigation options to comply with Reg. X); (2) directly related to active litigation (e.g., to complete a court-ordered communication or as part of debt settlement negotiations); (3) made in response to a consumer’s request for additional information; or (4) made to give information of benefit to the consumer (e.g., would provide the consumer an opportunity to avoid a clear negative effect relating to the collection of the debt that was not in the collector’s control and where time was of the essence.)