What You Need To Know About New Rules Allowing Debt Collection Robocalls From Feds

Image courtesy of Joe M. O'Connell

If you ask any American to name the things they love the most, they are sure to reply, “debt collectors, intrusive pre-recorded phone calls, and the federal government!” So today — under orders to do so from a piece of rushed, tacked-on legislation — the Federal Communications Commission released its final rules allowing the federal government and some of its contractors to make debt-collection robocalls to wireless lines.

By way of background, the Telephone Consumer Protection Act (TCPA) generally prohibits businesses from making a non-emergency robocall to a wireless number without the recipient’s prior consent. Then in late 2015, Congress tacked on a last-minute addition to must-pass budget bill, revising the TCPA to explicitly exempt robocalls that involve the collection of debts owed to the federal government.

The law directed the FCC to come up with new rules defining exactly when and how frequently these new robocalls could be made.

An initial draft of the rules released in May showed that the FCC was going to try to place limits on these calls in order to minimize their annoyance.

The final FCC report and order [PDF] now gives us a better idea of what to expect when the deluge of robocalls begins.

Reminder: These rules only apply to calls made to wireless lines, not landlines.

• When Can A Debt Collector Start Robocalling Me?
Say you have a federal student loan. Does the government have to wait until you default on that loan before it can robocall you about the debt? Or does a merely delinquent loan balance merit a robocall? Heck, maybe the government should be robocalling everyone with a student loan just to remind them to pay their bill this month?

The new law states that these robocalls can be made “solely to collect a debt,” but fails to define exactly when a “debt” is worthy of a collections call, so it was left to the FCC to define a starting point for when a call could be made.

The Federal Trade Commission advised that the Fair Debt Collections Practices Act generally uses a loan default as the starting point. However, those rules only directly apply to third-party debt collectors and not to businesses trying to collect debts owed to them directly. The FCC took a more expansive view and says these robocalls can be made on loans that are merely delinquent.

In fact, in certain cases the robocalls may come before an account is even past-due.

The National Council of Higher Education Loan Resources argued to the FCC that proactive, early robocalls would help “prevent damage to the consumer’s credit profile,” and the Commission agreed, finding that servicing calls “help a debtor avoid delinquency or default, which can preserve the debtor’s payment history and credit rating, and help maintain eligibility for future loans.”

“A caller, therefore, need not wait until a debtor is delinquent to begin making certain debt servicing calls,” reads the report, which allows for calls as early as 30 days before a “specific, time-sensitive event that affects the amount or timing of payments due, such as a recertification deadline or the end of a deferment period.”

• Who Can They Robocall?
Following the guidance of the “solely to collect a debt” language in the new law, the FCC determined that these robocalls can “only be made to the debtor or another person or entity legally responsible for paying the debt.”

That means robocalls are not permitted to others who are not liable for the debt, even if they are listed as references or witnesses on paperwork relate to the debt.

Some in the student loan financing world argued that sometimes the only way to track down a debtor is by calling parents and other relatives of the debtor, but the FCC countered that there is no need for a debt collector to use robocalls to reach out to these related parties.

• Which Numbers Can They Robocall?
Remember, as mentioned above, this regulation all involves wireless numbers, not landlines. That said, the new rules explicitly grant permission for robocalls to whatever wireless number you provided when you applied for the loan or otherwise incurred the debt, or any number you’ve subsequently given to the debt owner.

Collectors can make calls to wireless numbers obtained from independent sources “provided that the number actually is the debtor’s telephone number.”

What if you don’t owe any debt but the person who had your wireless number 10 years ago owes a bunch of money to the IRS? According to the rules, the collectors are allowed one call to a “reassigned” number before they are in violation.

• No Telemarketing Allowed
The FCC says the content of these robocalls must be related to the purpose of collecting a debt.

“Content in these calls that is telemarketing, therefore, transforms the call from one solely for the purpose of debt collection into a telemarketing call,” reads the report.

• How Frequently Can They Call?
For each debt owed, you can only be robocalled up to three times in a 30-day period.

Since no one federal agency has any sort of central database about all your debts, collections robocalls aren’t consolidated. So if you owe the IRS money and you’re late on your student loans, you could receive up to three calls per month for each of those debts.

• Can I Opt Out?
Robocalls are a nuisance, and having a pre-recorded message hassle you about a debt may not make it any easier to repay that debt. So the FCC is requiring that these robocalls make it clear that the debtor can request that these calls be stopped at any time.

“Granting consumers a right to request calls stop at any point is only useful if consumers know of this right,” explains the order. “We, therefore, require callers to inform debtors of their right to make such a request.”

Every robocall or text placed by the collectors must disclose this right to opt out of future calls. Again, this only applies to robocalls for that particular debt. If one has multiple debts to the federal government, they would have to opt out for each one.

• What Time Of Day Can They Robocall?
In an effort to prevent robocalls at the crack of dawn or the stroke of midnight, the calls are limited to being placed between 8 a.m. and 9 p.m. local time, which identical to the current rules for telemarketing calls.

Additionally, each prerecorded call is limited to a maximum of 60 seconds.

Maureen Mahoney, policy analyst for our colleagues at Consumers Union, says “Congress never should have given the green light to more robocalls to cell phones by undermining federal protections against such calls,” but acknowledges that the FCC’s rules put “limits on such calls that will help blunt the impact of this misguided loophole.”

• It Might Get Worse
While the FCC has been going through this rulemaking process, the Supreme Court ruling in Campbell-Ewald Co. v. Gomez arguably opened the door to additional robocalls from the federal government.

According to the FCC’s interpretation of that ruling, the federal government is indeed immune from TCPA restrictions, and government contractors could also enjoy derivative immunity from the TCPA if they are following the exact orders of the agency that contracted the company.

That would mean that all robocalls would be allowed by both the government and its contractors, so long as the calls involve actual government business.

A coalition of concerned advocates and other groups — including Consumers Union — recently petitioned the FCC to reconsider its ruling on that issue, arguing that the Supreme Court ruling does not extend the government’s blanket TCPA immunity to contractors and that this new loophole could lead to “tens of millions of Americans [finding] their cell phones flooded with unwanted robocalls from federal contractors with no means of stopping these calls and no remedies to enforce their requests to stop these calls.”

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