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Debt Collection Practices (Regulation F): Final Rule

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Debt Collection Practices (Regulation F): Final Rule BILLING CODE: 4810-AM-P BUREAU OF CONSUMER FINANCIAL PROTECTION 12 CFR Part 1006 [Docket No. CFPB-2019-0022] RIN 3170-AA41 Debt Collection Practices (Regulation F) AGENCY: Bureau of Consumer Financial Protection. ACTION: Final rule; official interpretation. SUMMARY: The Bureau of Consumer Financial Protection (Bureau) is issuing this final rule to revise Regulation F, which implements the Fair Debt Collection Practices Act (FDCPA) and currently contains the procedures for State application for exemption from the provisions of the FDCPA. The Bureau is finalizing Federal rules governing the activities of debt collectors, as that term is defined in the FDCPA. The Bureau’s final rule addresses, among other things, communications in connection with debt collection and prohibitions on harassment or abuse, false or misleading representations, and unfair practices in debt collection. DATES: This rule is effective [INSERT DATE ONE YEAR AFTER PUBLICATION IN THE FEDERAL REGISTER]. FOR FURTHER INFORMATION CONTACT: Dania Ayoubi, Joseph Baressi, Seth Caffrey, Brandy Hood, David Jacobs, Courtney Jean, Jaclyn Maier, Adam Mayle, Kristin McPartland, Michael Scherzer, or Michael Silver, Senior Counsels, Office of Regulations, at 202-435-7700. If you require this document in an alternative electronic format, please contact [email protected]. 1 SUPPLEMENTARY INFORMATION: I. Summary of the Final Rule The Bureau is finalizing amendments to Regulation F, 12 CFR part 1006, which implements the FDCPA.1 The amendments prescribe Federal rules governing the activities of debt collectors, as that term is defined in the FDCPA (debt collectors or FDCPA debt collectors). The final rule focuses on debt collection communications and related practices by debt collectors. In 1977, Congress passed the FDCPA to eliminate abusive debt collection practices by debt collectors, to ensure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.2 The statute was a response to “abundant evidence of the use of abusive, deceptive, and unfair debt collection practices by many debt collectors.”3 According to Congress, these practices “contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy.”4 The FDCPA established specific consumer protections, enabling consumers to establish controls on when and how debt collectors contact them, establishing privacy protections surrounding the collection of debts, and protecting consumers from certain collection practices. The FDCPA also established broad consumer protections, prohibiting harassment or abuse, false or misleading representations, and unfair practices. As the first Federal agency with authority under the FDCPA to prescribe substantive rules with respect to the collection of debts by debt 1 15 U.S.C. 1692 et seq. 2 15 U.S.C. 1692(e). 3 15 U.S.C. 1692(a). 4 Id. 2 collectors, the Bureau is adopting this final rule to implement and interpret those consumer protections, including by clarifying how they apply to newer communication technologies. The Bureau intends to issue a disclosure-focused final rule in December 2020 (disclosure-focused final rule) to implement and interpret the FDCPA’s requirements regarding consumer disclosures and certain related consumer protections. A. Coverage and Organization of the Final Rule The final rule is based primarily on the Bureau’s authority to issue rules to implement the FDCPA and, consequently, covers debt collectors, as that term is defined in the FDCPA.5 The final rule restates nearly all of the FDCPA’s substantive provisions largely in the order that they appear in the statute, sometimes without further interpretation. Restating the statutory text in this way should facilitate understanding and compliance by making it possible for stakeholders to, in general, consult only the regulation to view relevant definitions and substantive provisions. Except where specifically stated, by restating the statutory text, the Bureau does not intend to codify existing case law or judicial interpretations of the statute. The final rule has four subparts. Subpart A contains generally applicable provisions, such as definitions that apply throughout the regulation. Subpart B contains rules for FDCPA debt collectors. Subpart C is reserved for any future debt collection rulemakings. Subpart D contains certain miscellaneous provisions. 5 The record retention requirement in § 1006.100 is based on the Bureau’s rulemaking authority under title X of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), Pub. L. 111-203, 124 stat. 1376 (2010), but applies only to FDCPA debt collectors. See the section-by-section analysis of § 1006.100. 3 B. Scope of the Final Rule Communications Provisions Debt collection efforts often begin with attempts by a debt collector to reach a consumer. Communicating with a debt collector may benefit a consumer by helping the consumer either to resolve a debt the consumer owes or to identify and inform the debt collector if the debt is one that the consumer does not owe. However, debt collection communications also may constitute unfair practices, may contain false or misleading representations, or may be harassing or abusive either because of their content (for example, when debt collectors employ profanity) or because of the manner in which they are made (for example, when debt collectors place telephone calls with the intent to harass or abuse). To address such concerns about debt collection communications and to clarify the application of the FDCPA to newer communication technologies that have developed since the FDCPA’s passage in 1977, the final rule, in general: • Clarifies restrictions on the times and places at which a debt collector may communicate with a consumer, including by clarifying that a consumer need not use specific words to assert that a time or place is inconvenient for debt collection communications. • Clarifies that a consumer may restrict the media through which a debt collector communicates by designating a particular medium, such as email, as one that cannot be used for debt collection communications. • Clarifies that a debt collector is presumed to violate the FDCPA’s prohibition on repeated or continuous telephone calls if the debt collector places a telephone call to a person more than seven times within a seven-day period or within seven days after engaging in a telephone conversation with the person. It also clarifies that a debt collector is presumed 4 to comply with that prohibition if the debt collector places a telephone call not in excess of either of those telephone call frequencies. The final rule also provides non-exhaustive lists of factors that may be used to rebut the presumption of compliance or of a violation. • Clarifies that newer communication technologies, such as emails and text messages, may be used in debt collection, with certain limitations to protect consumer privacy and to protect consumers from harassment or abuse, false or misleading representations, or unfair practices. For example, the final rule requires that each of a debt collector’s emails and text messages must include instructions for a reasonable and simple method by which a consumer can opt out of receiving further emails or text messages. The final rule also provides that a debt collector may obtain a safe harbor from civil liability for an unintentional third-party disclosure if the debt collector follows the procedures identified in the rule when communicating with a consumer by email or text message.6 • Defines a new term related to debt collection communications: limited-content message. This definition identifies what information a debt collector must and may include in a voicemail message for consumers (with the inclusion of no other information permitted) for the message to be deemed not to be a communication under the FDCPA. This definition permits a debt collector to leave a voicemail message for a consumer that is not 6 These procedures appear in § 1006.6(d)(3) through (5). Throughout this Notice, the Bureau uses the phrase “may obtain a safe harbor from civil liability” to mean that a debt collector who follows the procedures in § 1006.6(d)(3) through (5) may have a bona fide error defense to civil liability under FDCPA section 813(c), 15 U.S.C. 1692k(c), for an unintentional third-party disclosure. The Bureau uses the term “may” because, to have a bona fide error defense to civil liability (i.e., to obtain what this Notice refers to, for ease of reference, as a safe harbor from civil liability), a debt collector must affirmatively prove compliance with both § 1006.6(d)(3)(i) and (ii). In addition, for ease of reference, the Bureau sometimes refers to the procedures in § 1006.6(d)(3) through (5) as “safe harbor procedures.” The Bureau’s use of the term “safe harbor” in the context of § 1006.6(d)(3) through (5) is different from its use of the term elsewhere in this Notice, where the term refers to actions that, when taken, permit debt collectors to comply with the FDCPA and Regulation F. 5 a communication under the FDCPA or the final rule and therefore is not subject to certain requirements or restrictions. Consumer Disclosure Provisions The FDCPA requires that a debt collector provide certain disclosures to the consumer. The final rule clarifies the standards a debt collector must meet
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