Our series of blog posts breaking down the CFPB's final debt collection rule now turns to a discussion of how to understand and comply with the final rule's inconvenient time and place provisions. For the most part, the final rule restates the FDCPA's statutory provisions related to time and place restrictions for consumer communications, including contacts at a consumer's place of employment. However, the Official Commentary provides some helpful guidance regarding how to comply with these provisions.
First, Section 1006.6(b)(1) of the rule restates the statutory prohibition against communicating with a consumer at any unusual time or place that the debtor "knows or should know" is inconvenient, absent prior consent from the consumer. In the Official Commentary, the CFPB explains that information contained in the file provided by the creditor regarding requests not to be contacted at certain times or places is sufficient to give the collector knowledge that such times and places are inconvenient. So, right out of the gate, it seems that the Bureau may envision the debt collector conducting a review of any existing account notes at the time of placement to ensure that any previously identified inconvenient times and places are noted and honored, absent contrary direction from the consumer.
The Official Commentary also does away with some of the vague indefinite examples of inconvenient times and places (e.g., "don't call me at school") and replaces them with highly specific examples in which consumers designate particular times and places as inconvenient. We believe this clarifies that the obligation of a debt collector to heed time and place restrictions is contingent on the consumer actually specifying those restrictions.
With respect to inconvenient times, the final rule reiterates that, in absence of known circumstances to the contrary or prior consent, any communications (whether by phone, ringless voicemail, text, or email) are presumptively inconvenient if placed before 8 a.m. or after 9 p.m. in the consumer's time zone. The Official Commentary further specifies that in determining inconvenient times, collectors must use a combination of the consumer's area code (for both landlines and cell phones) and mailing address to determine permissible call times. The Bureau also affirmed that the "time" of a communication for purposes of the time of day restrictions is the time the communication is sent by the collector – and not when it is received by the consumer. Additionally, the Official Commentary clarifies that the sending of a single, auto-reply in response to a consumer communication received by the collector after-hours will not violate this provision of the rule.
The final rule does permit a debt collector to ask follow-up questions when communicating with the consumer regarding what would be a convenient time or place in order to clarify statements made by the consumer. However, once a consumer indicates that the time or place of a communication is inconvenient, the collector cannot ask for consent to continue that communication beyond asking permissible follow up questions. Under Section 1006.6(b)(4)(i), consent to speak with a consumer at an inconvenient time or place must be given prior to placing the inconvenient call for which consent is now sought. Additionally, a debt collector cannot rely on consent given to the creditor or a prior collector because the rule specifies that consent must be given directly to the debt collector to communicate at a time or location that has been identified as inconvenient by the consumer. Id.
Under Section 1006.6(b)(1), mail, text messages, and emails are treated in the same manner as telephone calls. As illustrated by one of the examples in the Official Commentary, if the consumer tells a collector that it is inconvenient to be contacted at home, absent follow up questions or clarification from by the consumer, the collector is deemed to have knowledge that all communications to the home, including mail and calls to a landline at the home, are inconvenient and prohibited. However, absent express direction from the consumer, such a request likely does not include email and text communications. In the NPRM, the CFPB had included an example in which a consumer told a debt collector not to contact him or her at school. The CFPB received many comments from the industry asking how to determine when a consumer was at a specific location, given the prevalence of mobile technology. In response, the Bureau revised that example to the one discussed above. Therefore, it appears there is a basis for taking the position that prohibited communications are those specifically associated with the location, like calls to a landline or mail.
Importantly, if a consumer contacts a collector at a time or place the consumer previously designated as inconvenient, the final rule permits the collector to respond once at the same time and place and through the same medium of communication used by the consumer. However, unless the consumer affirmatively advises thereafter that the time or place is no longer inconvenient, further communications at the designated inconvenient time or place are prohibited.
With respect to consumers who are represented by counsel, in Section 1006.6(b)(2), the CFPB reiterates the FDCPA language that limits when a debt collector can contact such consumers. Specifically, under the rule, debt collectors are prohibited from communicating with consumers when the collector "knows or should know" that the consumer is represented by an attorney, and knows, or can readily ascertain, the attorney's name and address. However, in the Official Commentary, the CFPB confirmed that if a represented consumer initiates a communication with the debt collector, the collector may respond to that specific communication, notwithstanding the representation, because the consumer's initiation is deemed to be prior consent to that communication.
In Section 1006.6(b)(3), the final rule adopts the FDCPA language prohibiting collectors from contacting consumers at their place of employment if the collector "knows or has reason to know" that the consumer's employer prohibits such calls. In finalizing the rule, the CFPB concluded that a consumer did not have to use any specific language to receive the statutory protections of the FDCPA's place of employment provision. Accordingly, a statement by a consumer that the consumer cannot take personal calls while at work constitutes knowledge by the collector that the consumer's employer prohibits calls. However, consistent with Section 1006.6(b)(1), the collector may ask follow up questions regarding the employer's prohibitions or limitations to clarify. Moreover, the CFPB specifically declined to require collectors to track which employers prohibit employees from receiving debt collection communications due to the significant burden and complexity associated with such a requirement. Thus, whether a place-of-employment call is permitted is to be determined on an individual consumer basis, not by the identity of the employer.
The CFPB also addressed the thorny issue of whether calling a consumer's personal cell phone while they are at work falls under 15 U.S.C. § 1692c and Section 1006.6(b)(3) of the final rule. In the Official Commentary, the CFPB clarified that the place of employment prohibition clearly applies to landlines at work, as well as employer-provided cell phones and email addresses. However, unless the collector knows or should know that the consumer is at work, the place of employment provisions of the FDCPA and Regulation F do not prohibit a collector from calling a consumer's personal cell phone even if the consumer is at work. Of course, should the consumer then identify the time of the call as an inconvenient time to receive cell phone calls, the debt collector would need to honor that designation and refrain from further calls at that time.
The requirements outlined above are consistent with the larger purpose of the final rule, as stated by Bureau – increasing consumer control over how and when they are contacted by collectors. As such, attention is likely to be paid by both the Bureau and the plaintiffs' bar to a collector's compliance with the final rule's time and place restrictions. For many collectors, the ability to operationalize sufficient controls to ensure compliance seems likely to require additional investments in data management and tracking, agent training and scripting, and related oversight to address the inherently subjective and case-by-case nature of these limitations.
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