Comparing The CFPB’s Proposed Call Restrictions With Massachusetts’

In its May 7, 2019 Notice Of Proposed Rulemaking (NPRM) proposing debt collection regulations, the CFPB has proposed restrictions on the number of contacts a debt collector may make with a consumer during a given time period.

This is a contentious issue between debt collectors and consumer groups.

Debt collectors claim they have to make contact with debtors in order to collect debts. Consumer groups agree, but argue debt collectors contact debtors far too many times and inconvenience, annoy and harass consumers. The CFPB proposes caps on the number of contacts a debt collector may make, which are, as we have seen with other Massachusetts debt collection related regulations, much less restrictive than Massachusetts’.

The CFPB previously explored the concept of regulating consumer contacts by placing caps on the number of calls a debt collector would be permitted to make over a certain time period.  2016 Small Business Review Panel For Debt Collector And Debt Buyer Rulemaking Outline Of Proposals Under Consideration And Alternatives Considered (SBRP) The SBRP analysis (starting at p.24) distinguished between the number of calls necessary to establish consumer contact and confirm that the consumer was the correct person, or calls to re-establish contact when contact information became inadequate, and calls to seek payment, as well as calls to third parties. The SBRP also suggested the caps should apply across methods of contact – calls, text messages, and emails. However, the SBRP was restrictive in the number of live contacts – one per week.

The current proposed CFPB rules capping contacts retain the single live contact per week. 1006.14(b)(2)(ii)(p. 459) They also cap the total number of calls at seven over seven consecutive days. 1006.14(b)(2)(i)(p. 459).  A ‘call’ includes reaching the number in the sense of both causing it to ‘ring’, (buzz, vibrate) and reaching a voicemail.

However, texts and emails  (but not ringless voicemails) would not be counted in this cap. The CFPB does not think debt collectors are inclined to send excessive emails and texts, and suggests its prohibition on contacts the natural consequence of which is to harass, oppress, or abuse is sufficient to limit non-live contact texts and emails.

The CFPB excludes certain calls from frequency caps. 1006.14(b)(3)(p. 459) Those calls in response to a request for information from the consumer, calls made with prior consent directly from the consumer (i.e. debt collector cannot rely on consent given to the creditor or a prior debt collector), calls that were not connected (busy signal or number no longer in service), and contacts listed in 1006.6(d)(1) and (2)(p.455), such as attorneys and consumer reporting agencies.

The Massachusetts’s Attorney General’s Debt Collection Regulations (AG’s Regs) are more restrictive. They impose a cap of two communications  “via telephone, either in person or via text messaging or recorded audio message” in each seven day period. Unlike the CFPB proposed rules, the AG’s Regs distinguish between the number the consumer gives as his/her personal number and other numbers where the consumer may be reachable. For the non-personal number, the cap is twice in every thirty day period. The AG’s Regs also contain rules for contacting the consumer at her place of work, presumably subject to the two call/thirty day cap.

In crafting its exceptions from the numerical call caps, the AG’s Regs prohibit a debt collector from initiating calls in excess of the caps, but allow the caps do not apply if the communication by the creditor is in response to a request made by the consumer. While not specifically addressing the call caps, other portions of the AG’s Regs deem certain communications lawful, such as those with attorneys, credit counseling agencies, credit reporting agencies, calls relating to the sale or purchase of the obligation, and others. By virtue of their being deemed lawful, presumably these communications are not subject to the caps.

The AG’s Regs do not address email at all, so presumably emails are not subject to the caps, but of course there are other prohibitions in the AG’s Regs that would presumably prohibit excessive emails.

Massachusetts cases round out what is considered a communication under the AG’s Regs. Reaching consumer’s voicemail, even if no message is left, is considered ‘initiating a call’ and placing such calls in excess of the regulatory caps violates the cap. Armata v. Target Corporation 480 Mass. 14 (2018)

The Massachusetts Division of Banks Regulations of Debt Collectors 209 CMR 18.00 contain caps similar to the AG’s Regs. (the Division of Banks Regulations relate to debt collectors only. The AG’s Regs govern debt collectors, creditor’s and attorneys collecting debts. Confusing, isn’t it?).

To sum up, under the CFPB’s proposed rules, debt collectors would be limited to one live contact a week and seven attempted contacts. Texts and emails are not counted in these caps. There are exclusions from the cap for calls made with the permission of the consumer and calls to attorneys.

Those subject to Massachusetts regulations must operate with much greater restraint. A debt collector may not initiate more than two calls a week, and a call includes a text and attempted contacts. The Massachusetts caps do not apply to debt collector calls responding to the consumer’s request, attorney contacts and certain contacts to third parties in connection with the debt.

The AG’s Regs have been in place since 2013. If the proposed call caps become law, it will be nothing new for Massachusetts debt collectors.

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