The Federal Communications Commission (FCC) recently issued a Notice of Proposed Rulemaking (NPRM) regarding recent amendments to the federal Telephone Consumer Protection Act (TCPA), seeking comment on among other things:
(1) which calls are covered by the phrase "solely to collect" under the amendments;
(2) the meaning of the phrase "a debt owed to or guaranteed by the United States" in the amendments;
(3) how the FCC should restrict the number and duration of covered calls;
(4) whether consumers should have a right to stop covered calls at any point the consumer wishes; and
(5) whether callers should be required to inform consumers of such a right.
A copy of FCC's NPRM is available at: Link to NPRM
As you may recall, Congress amended the TCPA in the Bipartisan Budget Act of 2015 to allow autodialed calls "made solely to collect a debt owed to or guaranteed by the United States" without the prior express consent of the called party.
The amendments also require the FCC to "prescribe regulations to implement the requirements" within nine months of enactment of the amendments (i.e., by Aug 2, 2016), and to adopt rules to "restrict or limit the number and duration" of these covered calls.
"Solely to collect a debt"
Among other things, the FCC proposes to interpret "solely to collect a debt" to mean "only those calls made to obtain payment after the borrower is delinquent on a payment." The FCC also proposes that "servicing calls" -- i.e., "calls to convey debt servicing information" -- should be included in covered calls.
The FCC seeks comment on how it should interpret the term "delinquent," or whether covered calls may "only be made after the debtor is in default," how it should define "default," and whether a distinction should be made "between default caused by non-payment and a default resulting from a different cause under the terms of the debt instrument."
The FCC also seeks comment on what types of calls should be included in "servicing calls," how to distinguish servicing calls from "marketing calls," whether covered calls should be allowed to start only after a borrower is delinquent on a payment, and whether delinquency should also be a trigger for debt servicing calls.
"Owed to or guaranteed by the United States"
The FCC also seeks comment on the meaning of the phrase "a debt owed to or guaranteed by the United States," including "whether there are any circumstances under which a party other than the federal government obtains a pecuniary interest in a debt such that the debt should no longer be considered to be 'owed to . . . the United States.'"
For example, the FCC asks for comment on "[w]hat is a debt 'owed to' the United States and a debt 'guaranteed by' the United States?," and "[d]oes the phrase 'owed to or guaranteed by' include debts insured by the United States?," and "would a debt still be 'owed to . . . the United States' if the right to repayment is transferred in whole or part to anyone other than the United States, or a collection agency collects the funds and then remits to the federal government a percentage of the amount collected?"
Who May Be Called
The FCC seeks comment on whether the phrase "solely to collect a debt" should "include only calls to the person or persons obligated to pay the debt," and whether the FCC should "limit covered calls to the cellular telephone number the debtor provided to the creditor, e.g., on a loan application."
The FCC also seeks comment on "whether calls to persons the caller does not intend to reach, that is persons whom the caller might believe to be the debtor but is not, are covered by the exception," and proposes to exclude such calls from the exception.
In addition, the FCC proposes "that calls to a wireless number a debtor provided to a creditor, but which has been reassigned unbeknownst to the caller, are not covered by the exception, but have the same one-call window the [FCC] has found to constitute a reasonable opportunity to learn of reassignment."
Who May Make Covered Calls
The FCC proposes to allow "calls made by creditors and those calling on their behalf, including their agents," but asks whether "there a limiting principle to determining who should be deemed to be acting on behalf of the creditor."
The also seeks comment on "whether and, if so, how the Supreme Court's recent decision in Campbell-Ewald Co. v. Gomez [regarding unaccepted offers of judgment, and the mootness doctrine] should inform our implementation of the Budget Act amendments to the TCPA."
Limits on Number and Duration of Covered Calls
The FCC proposes to limit the number of covered calls to three per month, per delinquency and only after delinquency. The FCC also proposes "that the limit on the number of calls should be for any initiated calls, even if unanswered by a person."
The FCC also seeks comment on "the maximum duration of a voice call, and whether [it] should adopt different duration limits for prerecorded- or artificial-voice calls than for autodialed calls with a live caller," whether the FCC should limit the length of text messages, and how to count "debt servicing calls" for purposes of the proposed three-call limit per month.
Consumer's Ability to Stop Covered Calls
The FCC proposes "that consumers should have a right to stop [covered] calls at any point the consumer wishes," and that "stop-calling requests should apply to a subsequent collector of the same debt."
The FCC also proposes "to require callers to inform debtors of their right to make such a request," and seeks comment "on when and how callers should provide such notice."
The FCC also seeks comment on whether callers making covered calls should be required "to record any request to stop calling and provide a record of such a request to subsequent callers along with other information about the debt."
Ralph T. Wutscher
Maurice Wutscher LLP
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