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Section 1006.6d(3)-(5) and (e) Communications in connection with debt collection
The following perspective was provided by Rick Perr of Kaufman Dolowich & Voluck.
For the very first time in the history of the FDCPA, the CFPB has established reasonable procedures for communication by email and text messaging. Although still subject to the myriad of limitations contained within the FDCPA for communication generally, a debt collector may now invoke the bona fide error defense if an email or text containing debt-related communication is sent to an otherwise-prohibited third party. The Rule sets out the skeleton of maintaining reasonably adapted procedures for communicating with a consumer using an email address obtained by the collection agency directly from the consumer, by the creditor in its communication with the consumer, and by communication between a consumer and a prior debt collection agency. Similarly, the Rule allows for procedures for communicating using a telephone number for text messages. These procedures are excellent guideposts for formulating a comprehensive email and text program. The Rule mandates that this communication be accompanied by a clear and conspicuous statement describing a reasonable and simple opt-out process.
Electronic communication will likely be more thoroughly explored in litigation and advisory opinions going forward. But its foundation has been established by the Rule and will be the most prolifically utilized section of the Rule.
