What is the Definition of "Repeated or Continuous Contact" by a Debt Collector?

Stephanie Eidelman

Many collection agency executives have told me that one of their biggest challenges is complying with laws that are ambiguous. One particularly difficult area is frequency of contact.

The federal Fair Debt Collection Practices Act — § 806. Harassment or abuse [15 USC 1692d] — says this about harassment as it relates to contact frequency:

A debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section [of the FDCPA]:

…(5) Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.

Many states have incorporated the same clause into their debt collection laws. Some have modified it. For instance, this from North Carolina’s debt collection statute:

…Causing a telephone to ring or engaging any person in telephone conversation with such frequency as to be unreasonable or to constitute a harassment to the person under the circumstances or at times known to be times other than normal waking hours of the person.

I’m guessing someone(s) actually spent a fair amount of time on this slight language modification. What was the point? Is the threshold for harassment really different in North Carolina than anywhere else?

The problem is that the definition of “repeatedly or continuously” is subjective. Is once per day repeatedly or continuously? Twice per day? Once per week? Seven times per month? Can’t there be one Federal standard for such a thing?

Currently, individual judges are left to interpret what is harassment under the “repeatedly or continuously” contact standard. And the judges only interpret that behavior when a case is before them.

Each collection agency I’ve spoken with describes a similar process – they consider the ambiguous law, their clients’ wishes, and their technical capabilities, and they develop a policy based on their own best judgment about what is a conservative approach. And then they hope for the best, because they never really know whose definition of “repeatedly or continuously” they are going to have to meet.

I’ve spoken with some regulators about this. I have said, “Gee, these guys could really use some clarity. They want to comply with the law (as evidenced by the fact that they have invested in compliance people, recording technology, etc.). But the law is subjective.” The response I’ve received in a few cases was something like this, “Of course they want us to give them a definition. So they can walk right up to that line without going over.”

Well, okay, but definitive rules are written about all kinds of things. How about the speed limit? That’s always clear. How about smoking outside a public building? Here’s an excerpt from Alpine County, California:

Smoking is prohibited in all enclosed buildings and all vehicles, owned, leased or administered by the county. Smoking is also prohibited in the following non-enclosed areas owned, leased or administered by the county: A. Within twenty (20) feet of any county building or within twenty (20) feet of a main exit, entrance, operable window of a public building, or area where smoking is prohibited. Ashtrays or any other receptacle used to dispose of burning tobacco products shall be prohibited within twenty (20) feet of any county building.

Well that seems clear. They don’t say “Smoking is prohibited within a distance from the door such that it would cause a reasonable person to be annoyed.”

How about something more relevant to debt collection, like statutes of limitations? Those are very clear. They are different in many states – another cause of frustration and inefficiency. But leave that aside for now; at least they are clear.

It seems to me this lack of clarity just opens the door for lawsuits based on technicality rather than those based on real harm. Regulators and courts only have so much time and so many resources. I would think they’d rather spend their resources tracking down those with malicious intent, not those who are willing to comply with whatever the law is.

Now that the CFPB is charged with rulemaking authority over debt collectors, why not get this one out of the way? Establish a specific rule. It will help legitimate companies comply with the law. It will help examiners to determine whether those being examined are complying with the law. And it will allow the Bureau to focus its precious time on true bad intent.