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Section 1006.2 Definitions – Limited Content Message
The following perspective was provided by Michael Klutho of Bassford Remele.
Much of the chatter about the new Rule concerns “limited-content messaging.” The Zortman case (which my firm handled) served in part as the precursor to the LCM created by the CFPB in its newly published Rule. Just as in Zortman, the LCM adopted by the CFPB involves a voicemail message that does not name the consumer.
In its explanation for the LCM, the CFPB noted that its “analysis is consistent with several cases considering messages similar to final § 1006.2(j). See Zortman, 870 F. Supp. 2d at 701 (finding that the following message was not a communication: “We have an important message from J.C. Christensen & Associates. This is a call from a debt collector. Please call 866-319-8619.”) . . . Indeed, § 1006.2(j) is more protective of consumer privacy than the messages at issue in the Zortman line of cases because it includes the condition that the debt collector’s business name not reveal that the debt collector is in the debt collection business.”
The CFPB ultimately notes in its Commentary to the Rule that “§ 1006.2(j) [the LCM aspect of the Rule] reflects a carefully tailored message designed to meaningfully disclose the caller’s identity and include enough information to permit a consumer to decide how to respond while avoiding conveying information regarding a debt.”
The required “content” of a limited-content message is spelled out in the new Rule and must be followed when leaving a LCM (once the Rule becomes effective; slated effective date of November 30, 2021 assuming nothing changes). Specifically, § 1006.2(j) requires that limited-content messages include the following content:
- a business name for the debt collector that does not indicate that the debt collector is in the debt collection business,
- a request that the consumer reply to the message,
- the name or names of one or more natural persons whom the consumer can contact to reply to the debt collector, and
- a telephone number or numbers that the consumer can use to reply to the debt collector.
Required content example. The following example illustrates a limited-content message that includes only the content described in § 1006.2(j)(1):
“This is Robin Smith calling from ABC Inc. Please contact me or Jim Johnson at 1-800-555-1212.”
If a collector chooses, § 1006.2(j)(2) allows specified “optional” or permissible content in a LCM. Specifically, it allows:
- a salutation,
- the date and time of the message,
- a statement that, if the consumer replies, the consumer may speak to any of the company’s representatives or associates, and
- suggested dates and times for the consumer to reply to the message.
In its Comment 2(j)(2)–2, the CFPB provided an example of a LCM that includes all of the information required under § 1006.2(j)(1) and all of the optional content permitted under § 1006.2(j)(2). The “example” provided is as follows:
“Hi, this is Robin Smith calling from ABC Inc. It is 4:15 p.m. on Wednesday, September 1. Please contact me or any of our representatives at 1-800-555-1212 today until 6:00 p.m. Eastern time, or any weekday from 8:00 a.m. to 6:00 p.m. Eastern time.”
The CFPB confirmed in its Rule that a LCM is not a “communication” as that term is defined in the FDCPA. As such, it does not require the mini-Miranda. Nonetheless it is deemed an “attempt to communicate” [a new term the CFPB created with this Rule] so it does need to be counted in the telephone frequency count for purposes of the Rule’s maximum contacts per week.
Takeaways:
- A LCM must not include the consumer’s name.
- A LCM must include a business name for the debt collector that does not indicate that the debt collector is in the debt collection business.
- Business names using abbreviations designed to satisfy § 1006.2(j)(1)(i) [i.e., not disclose that the Agency is in debt collection business] will be deemed to satisfy the FDCPA meaningful disclosure requirement.
- Be careful in what is used in the “alpha” aspect of your Caller ID display to avoid disclosure that the caller is a debt collector.
- Leaving an LCM is limited to voicemail messages left for the involved consumer.
- An attempted LCM left in a live conversation with, or in a voicemail message for, third parties would not meet the definition of a LCM in § 1006.2(j) and therefore are not allowed.
- A message knowingly left for a third party is not a LCM because it is not for a consumer.
- Do not include the mini-Miranda when leaving a LCM.
- Do not leave LCM using social media.
- Including anything other than the required content of a LCM plus any of the specified optional information will take the message out from under the LCM protections of the Rule.
- For example, a voicemail message that includes a statement that the message is from a debt collector or a request to speak to a particular consumer is not a LCM because it includes more than the required or optional content.
- Another example of what not to do — A reference to an agent with the “credit card receivables group” is not a LCM because it includes more than a statement that the consumer’s reply may be answered by a “representative or associate.”
In sum, the “limited-content message” is a useful tool that should increase communication with consumers. It’s not the law as of yet. Unless it goes sideways in the meantime, it should be the “law” by December 1, 2021. Once it is, follow what the Rule says to the letter. Don’t deviate. And if follow the Rule, you should be protected when leaving LCMs.