Does Anybody Really Know What Time It Is?

COLLECTOR’S INK January/February 2012 • Volume LVII, No. 1

by Rozanne M. Andersen, Esq. and Chief Compliance Officer, Ontario Systems

ne of the most basic principles of the Fair Debt Col- Without the prior consent of the consumer given di- lection Practices Act (FDCPA) is that which pertains rectly to the debt collector or the express permission of O to the time of day when a collector may commu- a court of competent jurisdiction, a debt collector may nicate with a consumer in connection with the collection not communicate with a consumer in connection with of a debt. Even the novice debt collector knows calls to a the collection of any debt— consumer must be limited to the period between 8 a.m. (1) at any unusual time or place or a time or place and 9 p.m. local time at the consumer’s location. Though known or which should be known to be inconvenient seemingly the easiest of all the compliance requirements to the consumer. In the absence of knowledge of cir- imposed on debt collectors under the FDCPA, a recent up- cumstances to the contrary, a debt collector shall as- tick in litigation over this requirement would suggest oth- sume that the convenient time for communicating with erwise. a consumer is after 8 o’clock antemeridian and before Calling time cases generally wrestle with the following 9 o’clock postmeridian, local time at the consumer’s questions: location;… Emphasis added. What time is it [really] in the consumer’s location? Conflicting Area Codes: Due to the mobility of consum- Does the consumer’s address, land line area code, cell ers and the widespread use of cell phones, clarity surround- phone area code or zip code dictate the time zone of ing the consumer’s location has blurred. For example, if the consumer’s location? the address of record for the consumer is in Sacramento, California, but the area code assigned to the telephone Even if the debt collector knows the actual location of number of record for the consumer is a Washington DC the consumer, does the consumer’s location legally fall area code, what time zone applies to any debt collection within a time zone, which in practice, honors another calls placed to this consumer? There is no clear cut answer time zone? to this question. The prudent debt collector needs to deter- Do calls placed before 9 p.m. but which ring past 9 mine the most conservative approach and in this example, p.m. at the consumer’s location pose a compliance only place calls to this consumer during the window of time risk to the debt collector? between 8 a.m. Pacific Time [11 a.m. Eastern] and 9 p.m. Eastern Time [6 p.m. Pacific Time]. Obviously, if the collec- Section 805 of the FDCPA dictates the time of day when a tion agency has confirmation of the consumer’s location, debt collector may communicate with a consumer. Several the time zone for that location should apply; absent such states have also passed consumer protection laws that dic- confirmation, this hybrid approach should resolve the com- tate calling time restrictions for purposes of debt collection. pliance issue. Fortunately, the state requirements generally mirror the fed- eral law. For ease in reference, the FDCPA provides, U.S Time Zones: The United States uses nine standard § 805. Communication in connection with debt collec- time zones. From east to west they are Atlantic Standard tion 15 U.S.C. § 1692c Time (AST), Eastern Standard Time (EST), Central Standard Time (CST), Mountain Standard Time (MST), Pacific Stan- (a) Communication with the consumer generally dard Time (PST), Alaskan Standard Time (AKST), Hawaii- Aleutian Standard Time (HST), Samoa standard time (UTC-

11) and Chamorro Standard Time (UTC+10). View the consumers, debt collectors are imputed with the knowledge standard time zone boundaries in the map below. of whether the locality of the consumer honors daylight savings time. Daylight Saving Time, for the U.S. and its territo- According to timetemperature.com, “Daylight Saving Time ries, is NOT observed in Hawaii, American Samoa, Guam, begins at 2 a.m. local time on the second Sunday in March. Puerto Rico, the Virgin Islands and the state of Arizona (not On the first Sunday in November areas on Daylight Saving the Navajo Indian Reservation, which does observe). The Time return to Standard Time at 2 a.m. The names in each Navajo Nation participates in the Daylight Saving Time time zone change along with Daylight Saving Time. Eastern policy, due to its large size and location in three states. Standard Time (EST) becomes Eastern Daylight Time (EDT), and so forth. Arizona, Puerto Rico, Hawaii, U.S. Virgin Is- Don’t fall victim to a frivolous consumer lawsuit based on lands and American Samoa do not observe Daylight Sav- calling time restrictions for the simple reason that your ing Time. Most of Alaska is in the Alaskan Time Zone but agency is not well versed on the geographic areas that a portion of the Aleutian Islands are in the Hawaii-Aleutian honor daylight savings time or because the agency’s dial- Time Zone. Alaskan time is one time zone west (behind) ing technology does not solve for this compliance problem. Pacific Time. Hawaii is two time zones west of Pacific Time Legal Time Zone vs. Time Zone in Practice: Just (however, Hawaii does not use Daylight Saving Time so when it seems the question of calling times could not be- during Daylight Saving Time, it is three hours behind Pacific come more complicated – it did. Certain localities are le- Time.” gally located in one time zone but for practical reasons Daylight Savings Time: Not every state and U.S. ter- have unofficially adopted the time zone of a neighboring ritory honors daylight savings time. When placing calls to state or region. One such locality is Phenix City, Alabama.

Although Alabama is legally part of the Central Time zone, This article is provided for informational purposes only and Phenix City and areas that lie within a 10-15 mile radius of not as legal advice by the author, Rozanne Andersen, On- Columbus, Georgia, observe Eastern Time on a de facto tario Systems, or the California Association of Collectors, basis. Recently a rash of lawsuits have been filed against Inc. With respect to the topic of this article, any person or third-party debt collectors for having called consumers agency with specific legal questions must consult with the who reside in the subject area described above between counsel of their choice. the hours of 8 a.m. and 9 p.m. Central Time rather than between 8 a.m. and 9 p.m. Eastern Time. This same issue presents itself in certain areas in the states of Indiana, Ten- nessee and Florida. Once again there is no clear cut rec- ommendation as to which time zone should be honored in these areas. The prudent debt collector will follow the most conservative approach and ensure that calls are not placed before 8 a.m. or after 9 p.m. in either time zone. [Note: As of this writing, the author of this article has reached out to the Secretaries of State in Alabama, Flori- da, Indiana and Tennessee to determine whether an official opinion letter has been issued with regard to which time zone applies for purposes of complying with the FDCPA and any corresponding state consumer protection statutes.] Calls Initiated Within the Designated Calling Period: Once the proper strategy for placing calls to consumers has been settled on, it is equally important for a third-party collection agency to determine the last moment of the calling period when an outbound call can be placed to a consumer. The reason this step in the call strategy has become necessary is because consumers who receive a call that is placed before 9 p.m. but which rings through or is answered after 9 p.m. have successfully brought suit against the unsuspecting debt collector for violating the calling time restrictions imposed by the FDCPA. Generally speaking most agencies are discontinuing calls to consumers after 8:56 p.m. for this reason. Agency owners should consult their independent legal counsel for specific advice on this issue as it relates to their agency’s policy. Years ago when life was simple, zip codes matched area codes, consumers were less mobile and cell phones were a rare commodity, few cases surfaced under the FDCPA for the inadvertent violation of Section 805. However, that was then and this is now and even the most cautious, compli- ant agency can become the unsuspecting victim of aggres- sive consumer rights attorneys. By establishing policies that address the issues presented in this article, training debt collectors on calling time policies and using technology to solve these compliance issues, agency owners can reduce or eliminate this compliance risk and honestly answer the question does anybody really know what time it is with a simple – “Yes, at least sometimes.” ••