Section 1006.2 Limited Content Message
The following perspective was provided by Stefanie Jackman of Ballard Spahr.
The Final Rule defines a new term related to debt collection communications: “limited-content message.” If a message meets this definition, then it is not a “communication” under the FDCPA.
Proposed § 1006.2(j) would have enabled a debt collector to transmit a limited-content message by voicemail, by text message, or orally. However, in the final rule the Bureau found that need to define a specific message that is not a communication was less pressing for other communication media, such as text messages, emails, or social media messages because they differ from voicemail messages in ways that are relevant to the limited-content message. The Bureau reasoned that consumers may behave differently in response to voicemail messages than messages sent through other communication media. The Bureau further reasoned that messages sent through other communication media might include information beyond that permitted by § 1006.2(j). Subsequently, the Bureau finalized only limited-content voicemail messages.
By using a qualifying limited-content message, a debt collector may leave a voice mail message for a consumer that is not subject to the more burdensome requirements and restrictions applicable to a “communication” under the final rule. A limited-content message must include the following information to qualify as a limited content message: (i) a business name for the debt collector that does not indicate that the debt collector is in the debt collection business; (ii) a request that the consumer reply to the message; (iii) the name or names of one or more natural persons whom the consumer can contact to reply to the debt collector, and (iv) a telephone number that the consumer can use to reply to the debt collector. While the final rule provides for a handful of additional, optional items that a collector can include in a limited content message (salutation; date and time; suggested dates and times for the consumer to reply; and statement that if the consumer replies, the consumer may speak to any of the company’s representatives or associates) no information other than what is specified in the definition may be included in the voice mail for it to qualify as a limited-content message.
It is important to note that a debt collector should not leave a limited content message (or any other message) when a debt collector places a call to a consumer that results in a live connect with an unauthorized third-party. Instead, the debt collector should simply state that they will call back another time. It also important to note that although a debt collector is permitted to leave a company name, the name must not indicate the existence of a debt.
Individual states are not bound to use the final rule’s limited content message definition when interpreting and applying their own state collection laws and regulations. Thus, the decision not to allow the use of limited content messages in texts as proposed is potentially significant, as a number of states require specific disclosures, in addition to those already required by the FDCPA, in all written collection communications, which includes text messages. This leaves debt collectors with three alternatives for text messages: (1) avoid sending texts (which is not ideal and may present operational challenges); (2) send multiple texts to deliver all required disclosures (not ideal because of related TCPA risk); or (3) provide the disclosures via a hyperlink (the sufficiency of which is not settled under the FDCPA, let alone under each state’s laws).