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March's Top Compliance Question: Can a Collector Contact a Consumer Via Cell Phone?

Published: Friday, April 15, 2005

The top compliance question received by ACA's compliance officers for March was, "Can a debt collector contact a consumer via the consumer's cellular telephone?" Section 808(5) of the FDCPA provides that a debt collector engages in unfair and unconscionable collection practices when she causes a consumer to incur charges for a communication if the true purpose of the call is concealed. Concern is raised here because many cellular plans charge consumers by the minute. In order to avoid a violation of this subsection, it is necessary that a debt collector provide meaningful disclosure of her identity as well as the true purpose of the communication when attempting to collect a debt.

There are additional considerations when contacting a consumer via the consumer's wireless phone. According to Section 805(a)(1) of the FDCPA, a debt collector may communicate with a consumer between the hours of 8 a.m. and 9 p.m., local time at the consumer's location. When calling a cellular phone, one can never be certain of the consumer's exact location. Debt collectors may call at the wrong time or into a state in which the collector is not licensed to collect. These problems are not easily solved.

Aside from FDCPA concerns, the Telephone Consumer Protection Act (TCPA) regulations prohibit any person or entity from using an automated dialing and announcing device to initiate a telephone call to any number assigned to a wireless telephone unless the prior express consent of the called party is obtained.

This article is provided by ACA International's