Each Debt Collection Text Must Now Include an Opt Out Notice: And Other Key TCPA Lessons from the CFPB’s MASSIVE New Ruling

Well folks, on top of all the fun FCC, FTC, Congressional and case law updates–don’t miss TCPAWorld’s Top 10 scariest TCPA stories going for the highlights– the CFPB just dropped a 600 page tome articulating rules and regulations for the debt collection industry; including those related to outreach via text message.

I’m not going to summarize the entire rule–mostly because I want to get out of here early to carve pumpkins with the boys–but here are some key take aways from a TCPA perspective:

  1. Every debt collection text message must contain an opt out notification. This rule is quite different from the general TCPA rule governing text message stop notifications, which is that there is no rule. Ha.
  2. Debt collectors are safe from accidental third-party disclosures when using text messages, so long as they take advantage of a safeharbor procedure which is easy to follow and has absolutely no holes in it. *cough*
  3. Consumers can designate times that it is “inconvenient” to receive a call or text–similar to the old “partial revocation” rule we saw from the Eleventh Circuit back before it decided it hated TCPA class actions.
  4. Collectors can send one text at a time previously designated as inconvenient, but only if responding to a consumer’s text sent during that window.
  5. There’s this: “[t]he Bureau believes that, if a consumer has consented to a debt collector’s use of a particular telephone number for text messages and has not withdrawn that consent, the debt collector generally does not have reason to anticipate that using the telephone number to communicate with the consumer by text message will lead to a third-party disclosure—as long as the debt collector has taken steps to confirm that the telephone number has not been reassigned.” Hmmm…
  6. So all the collector has today is confirm that the consumer has not since withdrawn that consent, and within the past 60 days the debt collector either: “(1) obtained the prior consent or renewed consent from the consumer; or (2) confirmed, using a complete and accurate database, that the telephone number has not been reassigned from the consumer to another user since the date of the consumer’s most recent consent to use that telephone number to communicate about the debt by text message.”
  7. Collectors are presumed to NOT harass a consumer if they did NOT contact a consumer more than 7 times during a 7 day period and also did NOT contact the consumer within 7 days of their last contact with the consumer. That’s a compound double-negative presumption with a rebuttable twist and a shot of bourbon. (Well, maybe not the last part.)

Lots more to digest here and we’ll have more content on this. For now the entire rule can be found here:

Click to access cfpb_debt-collection_final-rule_2020-10.pdf

Feel free to reach out with questions.

And a tip of the hat to all of you out there that flagged this for me today. I love TCPAWorld.

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