March's Top Compliance Question: Can Debt Collectors Contact Consumers Via E-mail and Fax?

The top question received by ACA's Compliance Department in March concerned a debt collector's ability to communicate with a consumer via e-mail and fax. Although the Fair Debt Collection Practices Act (FDCPA) does not specifically address faxes or e-mail, collectors should be wary of using these methods of communication.

Fax machines are rarely secure because any person near a fax machine receiving a message may see what is being received. Therefore, it is virtually impossible for a debt collector to be certain that only the consumer will view the faxed information. Although debt collectors may use disclaimers on their fax cover sheets in an attempt to shield themselves from liability, this is not a legally valid defense. If a consumer requests that the debt collector communicate via fax, the debt collector should obtain and maintain written record of the consumer's authorization before doing so.

In addition, in order to comply with Federal Communications Commission (FCC) regulations, debt collectors who communicate with consumers via fax must include in the message the following information: the date and time the message was sent; an identification of the business, other entity, or individual sending the message; and the telephone number of the fax machine from which the message was sent or the telephone number of such business, other entity or individual. All of this information must be placed in the top or bottom margin of each transmitted page.

The use of e-mail also risks third-party disclosure. E-mail sent to a consumer's place of employment may not be secure because many employers have policies that permit the employer to review all e-mail that is transmitted through the company's system. Also, a consumer may have her assistant check her e-mail for her-another avenue for a third party disclosure. Even if consumers receive their e-mail at home, it may not be secure from inadvertent third-party disclosure, as some people share a home e-mail account. In addition, some Internet e-mail providers, including AOL and Hotmail, reserve the right to review e-mail in their system to be sure it is not being used for an illegal purpose.

At this time, ACA is not aware of any on-point decisions either prohibiting or permitting communication with a consumer via e-mail or fax. Therefore, collectors are advised to err on the side of caution when communicating with consumers using such methods. If a collector does choose to communicate with a consumer via e-mail or fax, the collector is strongly urged to embrace a policy of communicating with consumers via e-mail or fax only with the consumer's express permission.