FTC Panel 2: Please Stop Calling EVERYONE

Donald A. Yarbrough (not to be confused with this Donald Yarbrough — but promise me that you’ll treat yourself to ten minutes of reading time on that guy because: wow) does not like predictive dialers. He doesn’t like their ease, convenience, or the fact that people may actually answer the phone if called by a dialer.

The second panel discussion at the FTC Debt Collection 2.0 conference dealt with telephone technologies. The primary question being discussed (as opposed to answered, because boy are these people loath to definitively say anything) is how can debt collectors use the phone — any phone, be it land-line or mobile — to contact those who owe a debt.

Yarbrough said that calling the wrong party is “a pretty big problem. Pervasive, even.” Which: okay. Sure, I think we can all agree that you’re probably never going to get an absolutely clean call-list, where every debt has the correct name attached to it. People move, change phone numbers, change last names, change first names; identity is a very portable and malleable commodity. Maybe where the challenge lies is in characterizing it as a problem in the way that Yarbrough wants to characterize it as a problem.

As I suggested above, it appears that Yarbrough would rather no one was called by a debt collector ever. Some of the other panel members (David Schultz, for instance) would probably not mind at all if a collector was allowed to call as often as possible until the debt was resolved. There’s of course a happy medium. And of course, the FTC Debt Collection 2.0 conference doesn’t seem to be the place where that medium is going to be discovered.

In the wrap-up portion, the discussion facilitator asked each panel member to share what he thought might be an appropriate change in law or policy regarding this issue:

• Donald Yarbrough wants there to be “absolute verbal or verifiable contact” on the very first call before assigning that phone number to a dialer program.
• John Watson, COO of ARS NAtional Services, Inc., wanted to see “some sort of guidance on what is harassment in the FDCPA.” As it currently stands, he pointed out, it’s left up to the courts to legislate on the fly on this topic.
• David Schultz of Hinshaw & Culbertson thought it was important to establish the parameters for what an appropriate number of calls to a alleged debtor should be.^*

The challenges of Foti (a case restricting what can and can’t be said to a debtor in a voice-mail communication reported on insideARM here and here) also made a quick appearance, and just as quickly showed how obnoxiously convoluted it is for the collection’s industry. A quick recap: Foti v. NCO Financial Systems requires collectors to clearly identify themselves in voice-mail messages left to alleged debtors. Paradoxically, Foti also can be used against a collection agency if, in identifying itself on a voice-mail as a collection agency, the collection agency’s message is overheard by a second party not connected to the debt.

While no new information was added to the Foti discussion — we’re still no closer to understanding what the heck it means in any given case on any given day — I did find this point sort of interesting: Are the initial voice-mail messages communications (which would be governed by FDCPA and Foti), or are they simply an introductory avenue to later communication? I’m leaning toward the latter — but I’d be interested in hearing arguments against my point.

^* This is an interesting idea, and one that’s almost surely not going to be established any time in a hurry. Collectors probably don’t want it; they’re not interested, generally, in legislation that limits their contact with consumers. Consumer-oriented attorneys who make a living from suing debt collection agencies aren’t hot for it either, since they’d like to make the “too many calls” argument on a case-by-case basis.