September's Top Compliance Question: What Message Can a Collector Leave on a Consumer's Answering Machine or Voicemail?

Published: Monday, October 17, 2005

The top compliance question received by ACA's Compliance Department in September concerned a debt collector's ability to leave a message on a consumer's answering machine or voicemail. There are both state and federal laws to consider when creating a message.

Until recently, debt collectors often did not identify their agency and the purpose of their call when leaving a message on an answering machine or voicemail. Instead, the collector would leave her name, telephone number and a request that the call be returned. This was done to avoid improper third-party disclosure because the collector generally cannot be assured that the consumer would be the only party to hear the message. Leaving the collector's name, in addition to facilitating a return call, was also intended to satisfy the requirement that collectors placing telephone calls attempting to collect a debt provide meaningful disclosure of the caller's identity. Recent judicial opinions, however, have thrown the legality of this practice in doubt.

Some courts have held that meaningful disclosure of the caller's identity requires that the collector disclose the name of her employer and the nature of her business. This requirement was later extended by district courts in California to apply when a debt collector leaves a message on a consumer's voicemail or answering machine or uses a prerecorded message to do so.

The Telephone Consumer Protection Act (TCPA) also places certain disclosure requirements on debt collectors who use pre-recorded messages to communicate with consumers. At the beginning of the pre-recorded message, the debt collector must clearly state the registered name of the agency as well as the agency's telephone number. The Federal Communications Commission has clarified that parties making calls for the purpose of debt collection are not required to identify the caller's state-registered name in prerecorded messages if doing so would conflict with federal or state laws, such as the FDCPA provisions barring third-party disclosure under Section 805(b). Rather, where such a conflict does exist, the debt collector may identify herself by individual name.

ACA is working to alleviate this conflict of laws. Please contact you r own legal counsel to determine an appropriate message in your jurisdiction.

This article is provided by ACA International's Legal and Government Affairs Department.