by Jeff Sovern
The more I think about the CFPB's recent proposal to allow debt collectors to leave limited-content messages over the phone, the more I think the proposal has real problems. The proposal would allow debt collectors to leave voicemails or oral messages with whomever answered the phone. To qualify as a limited-content message, the message must contain a few items–such as the collector's name and number–may contain certain other items–such as that the person is calling about an account–but can't contain still other items, such as that the person is trying to collect a debt. These limited-content messages would not count as "communications" within the meaning of the FDCPA, and so wouldn't trigger disclosures that would tell third parties who happened to hear the message that a debt collector is pursuing the consumer. But I don't think they will work, at least not as currently proposed. First I'm going to discuss messages left with a human being, and then voicemails.
Messages left with people
Suppose a collector calls to speak to a consumer, let's call him Stan, and someone else, call her Marina, answers. The collector delivers the message: "Please have Stan call me, Ryan, at [number]." So far there's not a problem. But what happens when Marina asks, as people taking messages often do, "What's this about?" Ryan could reply that it's about an account, which is permitted under the proposal. But of course Marina is then likely to ask an account with whom. And Ryan can't answer because if Ryan goes beyond the items listed in the definition of a limited-content message, he's no longer delivering a limited-content message, and anything he says risks violating the FDCPA.
So maybe Ryan doesn't want to use the word "account" to avoid getting the question about whom the account is with. Should Ryan answer that it's a "personal business matter"? That choice has two problems. First, it violates the prohibition on saying anything not listed in the definition of limited-content messages. Second, that was the language the collector used in Foti v. NCO Fin. Sys., Inc., 424 F. Supp. 2d 643 (S.D.N.Y. 2006), the case that created the so-called Foti problem. Not only did Foti say that the message left there violated the FDCPA (though some courts have not agreed as to similar messages), but the Bureau's decision not to include such language within the limited-content messages safe harbor when the Bureau proposal cited Foti indicates that the Bureau is not comfortable with limited-content messages being left that include that language. What if Ryan says it's private or some other such formulation? I don't think that's different enough from "personal business matter" to give me confidence that it will work. Any debt collector saying the matter is private risks paying for litigation to determine if the message is no longer a limited-content message.
Another option for Ryan is to say "I can't answer any questions." But again, who knows if that will take the message out of being a limited-content message? Even saying that is saying something. Still another option is for Ryan to hang up quickly when the consumer asks a question. That will probably work once or even twice per debtor. But if Ryan calls a third time, and hangs up on the same person taking the message a third time, is that harassment? Harassment also violates the FDCPA. Maybe Ryan could try to hang up quickly before the person taking the call gets to ask a question, but that's going to be hard to time when Ryan probably wants to verify that the person has written down the phone number correctly. At the end of the day, debt collectors might be better off not leaving messages with live people. Otherwise, they risk funding a law suit to defend their conduct, and maybe losing it.
The collector doesn't have to worry about being asked questions when leaving voicemails, so that's not a problem. But there are two other issues (and these are also true of messages left with live people): first, it won't take long before everyone knows that a voicemail that refers to an account but doesn't say who it's with is a call from a debt collector. I will have more to say about that in an upcoming piece in Bloomberg Law, so I will leave that alone for the moment.
But even a limited-content voicemail that doesn't use the word "account" is going to tip off anyone who hears it that the call is from a debt collector. I'm pretty sure that these days, almost no one leaves voicemails of the sort debt collectors would be permitted to leave under the proposal. Back in the eighties and nineties, they did, but today almost everyone communicates via text or email. The only people I get voicemails from are older folks who never took up texting–and anyone who hears one of their messages knows who it's from; doctors' offices–and they always identify themselves; and robocallers–and they're pretty easy to identify. Maybe that isn't true of everyone, but I've been asking people I know, and they say much the same. I never get a voicemail like the one debt collectors will be permitted to leave (if you do, please so indicate in the comments). About a third of adult Americans have a debt in collection, which means a lot of people could receive debt collector voicemails, and if they later hear other people getting the same kind of message, they will know what it is. That will violate the consumer's privacy. This proposal would have made a lot more sense before everyone learned to text or use email. But I don't think it will work today.
It's ironic: for years, I thought that debt collectors should be able to leave voice messages for consumers. But now I don't think that can be done with violating the FDCPA's goal of protecting consumer privacy. The ship of phone messages has sailed.