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Section 1006.2 Limited Content Message

Manny Newburger

The following perspective was provided by Manny Newburger of Barron & Newburger.

Regulation F provides for the use of a “limited-content message”. The allowance of such messages solves what is often described as the “Foti issue”; named after Foti v. NCO Fin. Sys., 424 F. Supp. 2d 643 (S.D.N.Y. 2006), which held that voicemail messages were “communications” as defined by the FDCPA. As a result, the voicemail message had to comply with Section 809 of the FDCPA (15 U.S.C. § 1692e):

A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:

. . .

(11) The failure to disclose in the initial written communication with the consumer and, in addition, if the initial communication with the consumer is oral, in that initial oral communication, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a debt collector, except that this paragraph shall not apply to a formal pleading made in connection with a legal action.

After Foti, debt collectors tried adjusting their voicemail messages to include the mini-Miranda notice. That led to cases such as Berg v. Merchs. Ass’n Collection Div., 586 F. Supp. 2d 1336 (S.D. Fla. 2008), in which the defendant left the following message for a consumer debtor:

Hello. This message is for Thomas Berg. If you are not the person requested, disconnect this recording now. By continuing to listen to this recording you acknowledge you are the person requested. This is MAF Collection Services. We are expecting your call at 1-800-749-7710. This is an attempt to collect a debt. Any information obtained will be used for that purpose. 1-800-749-7710.

Berg filed a suit under the FDCPA and Florida’s FCCPA alleging that his father, stepmother, stepmother’s ex-spouse, girlfriend, and neighbor all heard the message in his home on one or more occasions. The Berg court denied the defendant’s motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), concluding that Berg had stated a claim under Section 1692c(b). Casting further doubt on the ability of debt collectors to leave voice mail messages the Berg court stated:

The Court is aware that this ruling will make it difficult, though perhaps not impossible, for debt collectors to comply with all of §§ 1692c(b), 1692d(6), and 1692e(11) at once in a message left on the consumer’s voice mail. However, we follow reasoning similar to Foti to find no reason that a debt collector has an entitlement to use this particular method of communication. Debt collectors have other methods to reach debtors including postal mail, in-person contact, and speaking directly by telephone.

Subsequent to the ruling in Berg, the U.S. Eleventh Circuit Court of Appeals became the first appellate court to address the Foti issue in Edwards v. Niagara Credit Solutions, Inc., 584 F.3d 1350 (11th Cir. 2009). Concluding that the messages at issue in Edwards were clearly “communications” requiring a mini-Miranda notice, the Court of Appeals stated:

Niagara complains that if it is not permitted to leave out of its answering machine messages the disclosure required by § 1692e(11), the result will be that it cannot leave any messages on answering machines. That assumes an answering machine message that includes the disclosure required by § 1692e(11), if heard by a third party, would violate § 1692c(b). We have not decided that issue, but even if Niagara’s assumption is correct, the answer is that the Act does not guarantee a debt collector the right to leave answering machine messages.

Edwards at 1354.

These cases created litigation risk and regulatory risk for any debt collector who chose to leave a voicemail message for a consumer. Some collectors have continued to use messages of the type at issue in Berg. Others have used the variation approved by the court in Zortman v. J.C. Christensen & Assocs., 870 F. Supp. 2d 694 (D. Minn. 2012), in which the debt collector identified himself and left a mini-Miranda message, but did not state the name of the person being called. Many collectors attempt to avoid leaving voicemail messages, opting instead to make more attempts at contact but not leaving messages. This has led to complaints from the consumer bar regarding both call frequency and the alleged harassment inherent in calling repeatedly and not leaving a message.

The “limited-content message” in Reg. F is considered “an attempt to communicate” as defined by § 1006.2(b) (a phrase that is not defined in the FDCPA). However, the limited content message is not defined as a “communication”, removing it from the category of conduct that is subject to the mini-Miranda requirement. In order to meet the regulation’s definition, the limited-content message must be:

  1. a voicemail message;
  2. for a consumer;
  3. that includes:
    1. business name for the debt collector that does not indicate that the debt collector is in the debt collection business;
    2. a request that the consumer reply to the message;
    3. the name or names of one or more natural persons whom the consumer can contact to reply to the debt collector; and
    4. a telephone number or numbers that the consumer can use to reply to the debt collector.

See § 1006.2(j).

Each of the above components is mandatory, and a message that does not contain all four components will not qualify as a limited-content message.

The regulation also permits (but does not require) a “limited content message” to include:

  1. a salutation; and/or
  2. the date and time of the message; and/or
  3. suggested dates and times for the consumer to reply to the message; and/or
  4. a statement that if the consumer replies, the consumer may speak to any of the company’s representatives or associates.

With the exception of the mandatory and optional content a voicemail message that contains any other content does not qualify as a limited content massage, and it will be subject to the mini-Miranda requirement.

We note that § 1006.2(j)(1)(i) requires a debt collector to use a business name “that does not indicate that the debt collector is in the debt collection business” this could conflict with § 1006.18(c)(4) which considers that the “[u]se of any business, company, or organization name other than the true name of the debt collector’s business, company, or organization.” is a “false, deceptive, or misleading” practice. It leaves some question of whether companies that have a registered tradename or “d/b/a” can safely use that name when leaving a “limited-content message” and not commit a “false, deceptive, or misleading practice.” FDCPA case law prior to the adoption of Reg. F allowed the use of a lawful assumed business name. The Bureau has not indicated whether it intends that doctrine to hold true under the regulation (although it has not provided any indication that it will not allow the use of assumed names). Businesses that have names including words such as “Collection” will need to watch this issue closely if they want to use limited content messages.