In the past few years, the debate over limits on financial institutions’ electronic communications with consumers has focused on an outdated device: the telephone.
That is very well how the debate could continue under new leadership at the Federal Communications Commission, as industry supporters will likely urge the FCC to ease up on robo-calling restrictions.
In 2015, the FCC disappointed the financial services industry, which had wanted more flexibility on robo-calling restrictions. The agency’s ruling under the Telephone Consumer Protection Act went further, all but ending debt collectors' use of robo-calls to cellphones. Then-Commissioner Ajit Pai, who is the new FCC chairman, wrote a scathing dissent. In it, Pai wrote, “The TCPA has become the poster child for lawsuit abuse.”
He is correct. In debt collection, TCPA litigation increased 31.8% from 2015 to 2016 while Fair Debt Collection Practices Act litigation decreased during the same time period. This isn’t surprising. The FDCPA puts a cap on damages while the TCPA does not. Furthermore, the 2015 FCC ruling provided broad and ambiguous definitions with many openings for legal action.
Lawyers have been making a living out of suing and settling with debt collection agencies for a long time – often in a way that can seem abusive. The industry is advocating for Pai to undo a lot of that perceived harm by reducing collectors’ TCPA-related compliance and litigation costs.
But if Mr. Pai loosens the rules on robo-calls, he will hurt consumers by subjecting them to more unwanted calls and also hurt debt collectors and creditors by allowing them to sink back into short-term complacency about their collection methods while the world changes around them.
Phone calls are losing relevance as consumers migrate to communicating with companies over digital channels. Indeed, the tech company Neustar reports that 97% of business calls go unanswered. Yet, some debt collectors are trying to stop regulators from placing limitations on their calling strategies – strategies that are harmful to consumers who don’t even want to communicate by phone.
To be sure, some debt collectors are acknowledging the communication trend.
Take, for instance, Albert Cadena, president and chief operating officer of USCB America. Cadena took the stand at the Consumer Financial Protection Bureau’s field hearing on debt collection in Sacramento, Calif., in July, and said: "Communications is a key thing in our industry. We talk a lot about reaching out: letters, calls. The key thing … is to respond, communicate, talk to the collections agency whether it’s first party or third party."
Perhaps unwittingly, Cadena was suggesting that communication is not as effective as it could be, and that traditional modes of communication (calls and letters) have become largely ineffective.
His remarks were made the day after the CFPB published its outline for a proposed regulation in debt collection – a document that was more than three years in the making and published a year after the FCC’s broad TCPA ruling. In the bureau’s outline were sections that point to the direction the industry should actually focus in on when communicating with consumers: email and text message.
The Trump administration may defund the CFPB, and the FCC may roll back its TCPA ruling. Debt collectors may hope for simpler compliance requirements and less frequent enforcement actions. However, in terms of the policy around telephone communications, both supporters and detractors of these agencies’ regulatory agenda are debating about a disappearing world. A policy focused on phone calls and written letters is inconsistent with a new generation of borrowers that responds to emails and social media posts. This debate is still focused on the minutiae of the FDCPA, a rule from the 1970s that forbids the use of postcards, while some consumers never set foot in a bank branch or talk to a banker.
Not all industry players are ignoring these realities. Several large issuers and banks have been leading the charge in shifting from call-heavy, to digital-first and consumer-friendly collections. The CFPB’s proposal explicitly calls out email and text messages as technologies for debt collection. The future of the industry lies in adapting to consumer behavior and the fact that consumers are not answering their phones.