When my wife and I were in California, she insisted on taking a picture next to the sign outside Facebook’s HQ, a sign bearing the ubiquitous “Like” icon. There, I noticed that the reverse side of the sign bore the logo of Sun Microsystems. This confounded me. Is Zuckerberg that cheap? However, Zuckerberg purposefully did this when they took over Sun’s campus to remind employees what happens if you fail to innovate. In 1998, Sun was on top of the world. Two years later, Microsoft, Intel and Linux caught up with Sun and offered their comparative products at a cheaper price. Ten years later, the company that had called itself “the dot in .com” ceased even to be a dot on the map.
The same holds true in our industry: The FDCPA remained stuck in the 1970s, lacking only bellbottoms, pet rocks and a Bee Gees album to complete the look. Then, on May 22, 2019, the CFPB proposed rulemaking to finally address the 21st century.
Recognizing communication technology evolution has led to a consumer preference for email, texts or web portal communication, the CFPB proposed rules for the new communication modes. First is a “limited content message” that will not qualify as a communication under the FDCPA, so long as it does not communicate certain specific pieces of information that can be texted or emailed. Second, Cease and Desist requests will be specific to the form of communication. For example, a consumer can designate emails as their preferred communication means and limit all others. Third, the rules will allow use of emails and texts in debt collection, with certain limits, such as inclusion of instructions to opt-out of receiving emails or texts. Finally, the rules would set out procedures to protect debt collectors from liability for unintentional third-party communication when using emails or texts.
The proposed rules will allow the transmittal of required correspondences via email or text. In addition to a safe harbor initial demand letter form, a debt collector will be able to send that initial demand electronically. If sent in that manner, the Bureau will set forth requirements and allowances for debt collectors to provide prompts within the communication for disputes, validation and other features. Hence, the consumer could click on a link in your demand letter to dispute the debt, cease and desist or make a payment. To further protect debt collectors, the Bureau would create a model validation notice, clarify how to validate debts electronically and a safe harbor if the debt collector complies with certain steps when delivering validation notices within the body of an email, if that is the initial communication.
When Netscape Navigator was deemed David to Microsoft’s Goliath, Bill Gates is claimed to have said they had to “innovate or die.” That is no different here. The CFPB is proposing these rules and on their face, the changes are refreshing, they seek to balance the overreaching of the former CFPB chair and allow for our input. Now, given the relative fairness of the proposal, we could sit back and let the process play out. However, it is important that we stop being reactive and be part of the change. I can guarantee that our friends on the consumer side will loudly proclaim these proposed rules are bad for consumers. As we know, they really mean that the rules will be bad for business. This is a chance not simply to modernize communication but create black and white standards to protect us against the endless lawsuits that feast on the gray areas of the FDCPA. Let your voice be heard, whether on your own or through a national organization. Shape the future, don’t be shaped by it.
Michael L. Starzec is a partner with Blitt and Gaines, P.C and is vicepresident of the Illinois Creditors Bar. He is a frequent speaker, writer and litigator on creditor’s rights.