Text messages from debt collectors? Not in my garden!
Some people just don’t like change. New developments are often opposed by small groups who prioritize their own interest over the interests of the community as a whole. In real estate, these groups are sometimes known as “NIMBY”, short for their rallying cry: “Not in my backyard!” Well, it seems debt collectors have their own NIMBYs.
When the Fair Debt Collection Practices Act (FDCPA) was passed in 1977, the most common means for debt collectors to reach consumers were telephone calls, letters and telegrams. It took 44 years for the law to catch up with modern technology, but the CFPB finally did in 2021 with Regulation F guidelines for FDCPA-compliant electronic communications like email and texting. Here are some of the main takeaways:
- Email, text, social media, and other electronic media are valid forms of “communication” under the FDCPA. These include the electronic delivery of the initial validation notice or a response to a claim validation request (options previously discouraged by case law).
- Regulation F allows emails and text messages to be sent with direct consent given by the consumer to the debt collector and indirect consent given by a creditor or former debt collector who has obtained direct consent. Although not mandatory, there are suggested procedures for obtaining direct and indirect consent which, if followed, provide safe harbor protection against inadvertent disclosure of the debt to a third party.
- Regulation F calling frequency limits do not apply to emails, text messages or other electronic communications. However, the FDCPA’s general prohibitions against harassment and contact at inappropriate times still apply, so frequency is always a factor and messages should generally be sent between 8:00 a.m. and 9:00 p.m. local time for the consumer (rather than late evening or early morning). in the morning in the sender’s time zone).
- Electronic communications must contain all customary disclosures of the FDCPA and state law, as well as specific account information required by Regulation F. The rules vary depending on the type of communication.
- Takedown notices are required in all electronic communications. They must be clear and visible and provide reasonable and simple means for the consumer to opt out. The CFPB’s Small Entity Compliance Guide suggests using a hyperlink or allowing the consumer to respond with words like “stop” or “unsubscribe” to unsubscribe. The guide also offers sample language such as “Reply STOP to stop texting to this phone number” or “Click here to unsubscribe from further emails to this email address”. The CFPB left it up to debt collectors to decide where to place the notice. “Although no minimum font size is required, the placement and size of the font should be easily noticeable and readable for consumers.”
For a comprehensive review of all rules related to electronic communications, see these resources on the CFPB website: Regulation F, FAQs, and Small Entity Compliance Guide.
This long-awaited update was hardly revolutionary; it simply gave debt collectors permission to use the same modes of communication that most businesses use to interact with consumers – options that are increasingly popular with consumers who want to “go green” or enjoy the freedom to do things “on demand” anytime, anywhere, and however they choose.
Now, litigants, lawmakers and even private NIMBY companies are lining up to protest, trying to limit or prevent debt collectors from using these options, even if that’s what the consumer wants.
- Litigants can’t change Rule F, but they can try to make electronic communications more of a problem than it’s worth. One of the most common claims is that the opt-out notice is not “clear and conspicuous” and does not provide a “reasonable and simple method” for the consumer to opt out. These arguments can be invoked in any situation. For example, compare these two complaints filed by the same lawyer making the same arguments about two very different emails:
- Hoskins’ complaint was based on this unsubscribe notice at the bottom of the email: “unsubscribe.”
- Green’s complaint was based on this unsubscribe notice about the middle of the email: “Click here to opt out of receiving further emails for this account. »
Two very different emails, two very similar complaints. Still, it’s hard to see why these emails are a problem. Both notices are in line with the CFPB guidelines (outlined above). They also resemble the unsubscribe/unsubscribe links that consumers are used to seeing in emails from their favorite retail stores, social media platforms, banks and other services.
- Federal and state lawmakers have introduced bills imposing more restrictions:
- US HR 8334 would expand the scope of the Telephone Consumer Protection Act (TCPA) to bar calls and text messages from an automatic telephone numbering system (ATDS) without the prior express consent of the “recipient”. The biggest concern is how they redefined ATDS as “equipment that has the ability to store or produce phone numbers to call or text” without limiting it to equipment that uses “a number generator random or sequential”. Although the bill directs the FCC to pass a rule clarifying definitions, removing this language could reopen the floodgates of litigation for anyone (not just debt collectors) using dialer or texting platforms. not currently covered by the TCPA. This bill was tabled on July 12, 2022 and remains pending review in committee.
- NY SB 3121 would create a debt collection license requirement and new regulations. Although it largely follows the FDCPA, it deviates from it by requiring debt collectors to obtain “the prior written or recorded and revocable consent of the consumer debtor given directly to the debt collector” before using electronic communications such as emails or text messages. This bill was reintroduced and referred to committee on January 5, 2022, where it remains pending.
- DC CB 24-0357 is the latest DC Council decision to restrict the collection activities of debt collectors, debt buyers, and even original creditors. It would prohibit electronic communications before the initial notice is sent (i.e., such notices must be mailed), require prior express consent directly from the consumer, and limit debt collectors to a total 5 electronic communications (e-mails, SMS, etc.) per 7 days. The bill was signed by the mayor on July 7, 2022 and sent to Congress where it remains pending review. Unless Congress objects, it will become law and go into effect on January 1, 2023.
- T-Mobile and Twilio have added third-party debt collection to their lists of prohibited message categories, effectively preventing debt collectors from using their platforms to communicate with consumers without regard to consumer preferences.
Creditors and repairers should be careful because these same rules may also apply to you! In addition to the TCPA and DC law mentioned above, other states – such as California and Maryland – already have laws that require creditors and managers to comply with the FDCPA (and Regulation F) even s they passively accept pre-default debt payments.
Such policies may be based on good intentions, but they have the potential to cause real harm by removing choices that would actually improve accessibility. Some consumers may prefer phone calls and letters, but that doesn’t work for everyone. For example, phone calls and letters can be embarrassing for people with families or roommates. Some people don’t have their own phone, but they can check their emails at a public library. Others may miss letters because they have unstable living conditions, travel frequently, or have multiple addresses because they are a seasonal resident (aka “snow bird”). Emails and text messages would keep them all informed, wherever they go. These consumers have the same rights and deserve the same quality of service as everyone else.
Many consumers have developed a taste for on-demand services that adapt to their preferences and behaviors. As most industries have evolved, debt collectors have been held back by rules that are increasingly out of touch with society’s expectations for user-friendly experiences. In fact, electronic communications such as email and SMS are particularly convenient ways for businesses and consumers to interact quickly, quietly, and on demand. Many consumers prefer these options to the disruption of a ringing telephone or the delay in the exchange of letters by post. Electronic communications are generally more private and respectful of the consumer’s precious time. They provide the same important information in a concise format that’s easy to keep for future review with a continuous history of conversations saved in one place. The ability to share hyperlinks, images, audio, video, and attachments can also help streamline services for faster results.
Most importantly: if a consumer doesn’t like these options, it’s incredibly easy to opt out!
In the end, it all comes down to giving consumers the freedom to choose for themselves when, where and how they want to communicate with debt collectors – even if it means sending an email or texting in the privacy and comfort of their own backyard.