On September 25, 2013 the Federal Trade Commission (FTC) settled its first case that involved text messages under the Fair Debt Collection Practices Act. This case has shown that (1) the FTC believes that “clear and conspicuous” disclosure rules are applicable regardless of the medium and technological limitations of the device; and (2) the FTC agrees with the Federal Communications Commission’s (FCC) re-interpretation of “prior express consent” to receive a text message on a mobile device under the Telephone Consumer Protection Act (TCPA). Both of these facts mean that businesses will need to re-evaluate the way mobile telephone numbers are collected from consumers and the way the numbers are used for the purposes of debt collection and marketing.
In this recent case, the FTC alleged that the text message sent to consumers violated the Fair Debt Collection Practices Act (FDCPA) because the message failed to:
The FTC used its enforcement authority to make it known that debt collectors should follow a process when seeking the consumer’s consent to receive communications via text messages.
Clearly and Prominently
The FTC is not willing to relax on the disclosure rules of the FDCPA just because they would be transmitted on a device with a small screen. The FDCPA is very clear about what debt collectors can and cannot do when communicating with consumers. These rules apply regardless of whether the form of communication is via mail, phone, text, or other form of communication. If a debt collector is having trouble following the law when using a particular medium, such as text messages, then they should think twice before using it.
Debt collectors should consider whether communicating via text message, with its speed and efficiency, is worth the legal risks of potentially not making an effective disclosure. To make the required disclosure via text seems to be very cumbersome and supplying the required disclosures through a hyperlink may carry some legal risks.
Prior Express Consent
The FTC also set a high standard of consent in this case. “Express consent” means that before sending a text message to the mobile phone of a consumer, the debt collector must (1) disclose prominently that the consumer may receive collection text messages on their mobile phone number that has been provided to the original creditor or to the debt collector (if it was provided in connection to the transaction the text message is about); and (2) additional steps were taken by the consumer indicating their agreement. There is not a provision in the FDCPA regarding express consent. However it does appear in the TCPA and text message communication that involves debt is subject to both the FDCPA and the TCPA.
Today, both the FTC and FCC agree that in order to obtain consent from the consumer to receive communication via text messages the consumer needs to:
1. Requested to provide a mobile phone number for the specific purpose of receiving text message communications,
2. Be informed by the debt collector that providing the number is not necessary to obtain goods and services, and
3. Affirmatively indicate that they agree to receive communications through text message.
Our experienced attorneys here at Krohn and Moss Consumer Law Center have also provided many helpful resources regarding the FDCPA and how debt collectors should act. For more information, click here to learn more about this act and how it can help you.
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