The debate about how a message can be left without violating the Fair Debt Collection Practices Act (FDCPA) has been ongoing for many years at this point. The topic is now regularly discussed in the healthcare community as providers work diligently to ensure compliance with rules and regulations governing debt collection practices while actively encouraging patients to pay for services that have been rendered. Recently, a District Court in the State of Oregon joined the discussion and the opinion issued interestingly indicates that each decision should be specific to the facts of a particular case.
In the Oregon case, a consumer made allegations that a collection agency was in violation of FDCPA when it left two separate messages for the consumer on her cell phone which were overheard by others (third parties). Before the messages being called into question were left, the consumer, Ms. Peak, had agreed to a payment arrangement with the collection agency holding her debt.
Throughout the course of her payment arrangement, the collection agency made contact with Peak to confirm her method of payment while also confirming that the phone number that they had on file was the best number to reach her. Apparently, Peak was driving in her car at this point, so the collection representative was now aware that the phone number was that of a cell phone.
However, the collection agency was unaware that Peak’s boyfriend had cancelled his own wireless coverage and had taken to using Peak’s phone; gaining access to any voice mail messages left for her. At some point after that, the collection agency made another attempt to reach out to Peak on her cell phone but instead reached her voicemail. Later on, her boyfriend began listening to voicemails that had been left on the cell phone and heard the collection agency message left for Peak.
A month later the same collection agency called and left another voicemail that was similar in nature to the message mentioned above. However, this time, Peak decided to listen to her message through the loudspeaker on her cell phone in the break room provided by her employer, which, oddly enough, was another collection agency; so, the message was heard by her employer. After that, she filed suit asserting that the collection agency that had been reaching out to her had violated the FDCPA alleging that the messages that were heard by others were communications with third parties and unauthorized.
The court came to the conclusion that the messages did, in fact, qualify as “communications” under FDCPA rules, however, they were not to be viewed as communications with a third party. The court took the stand that “a communication is only with a third party” if “the debt collector knows or should reasonably anticipate the communication will be heard or seen by a third party.” The court further stated “no matter how careful a debt collector is, there is always some risk a third party will intercept the communication.”
The court also declared that “Congress intended the FDCPA to cause debt collectors to be very careful in the way they communicate with consumers, but it did not intend the statute to completely shut down all avenues of communication and force debt collectors to file a lawsuit in order to recover the amount owed.” A “strict liability standard would invite abuse” while “a negligence standard strikes the right balance because it holds debt collectors liable for failure to take reasonable measures to avoid disclosure to third parties, but does not require them to avoid such disclosure at all costs”.
The determination was made by the court that it was unreasonable to believe that it could have been foreseeable by the collection agency that the phone messages could be heard by Peak’s employer or her boyfriend. The court pointed out that a pivotal piece of information was the fact that the calls placed were sent to a cell phone and that the outgoing message coming from that phone identified only Peak as the owner of the phone.
Finally, the court pointed out that “the cell phone/land line distinction is important because a caller may reasonably assume messages left on a cell phone’s voicemail system will not be accidentally overheard, as they must be accessed through the cell phone itself. By contrast, if any person is in the vicinity of a land line answering machine, that person may overhear a message as it is being left.”
While common sense seems to have prevailed in this case, ambiguity still exists under the FDCPA as well as the governance of the Consumer Financial Protection Bureau (CFPB). Now is a good time to be certain that your medical office or collection vendor is doing everything necessary to be compliant.