The Federal Trade Commission has announced a settlement with GC Services, a large debt collector accused of using unlawful tactics to collect federal student loans and other debts. The Stipulated Order, which includes a $700,000 civil penalty and a variety of injunctive relief, contains a series of provisions setting conditions on placing collection calls and leaving messages for consumers. The Order further complicates the already complex considerations for debt collectors on whether and when to leave messages for consumer debtors.
First, the Order enjoins GC services from leaving recorded voicemail or answering machine messages which both (1) state the first or last name of the debtor, and (2) disclose that GC Services is a debt collector, is attempting to collect a debt, or is owed a debt by the debtor. It provides, however, that GC services may leave a message containing both pieces of information if (1) the recorded greeting on the voicemail or answering machine contains the debtor’s first and last name (and only the debtor’s first and last name); (2) if GC Services has already spoken with the debtor on at least one occasion using the same telephone number and has confirmed that only the debtor can access messages left at that number; or (3) if GC Services has the debtor’s prior consent to leave messages at that number. It also provides that GC Services may not leave such a message under any circumstances “if the person has explicitly prohibited Defendant from leaving recorded messages on that phone number.”
The Order implies approval by the FTC of voice mail messages based on Zortman v. J.C. Christensen & Assocs., 870 F. Supp. 2d 694 (D. Minn. 2012), in that it prohibits GC Services from leaving messages disclosing that GC Services is a debt collector only if the message also contains the consumer’s first or last name. A Zortman message, which does not contain the consumer’s first or last name but discloses that the call is from a debt collector, is consistent with the FTC’s directive.
With respect to those conditions, the FTC’s Order leaves much room for interpretation, which all but guarantees that litigants will rely on the FTC’s directives when pleading alleged FDCPA violations. For example, the Order allows GC Services to leave a more detailed message if the voicemail greeting discloses the person’s first and last name (and no other names), and if the first and last name on the greeting are the same as the person allegedly owing the debt. But if an account is owed by “Sue Smith,” and the voicemail greeting discloses the name “Susie Smith,” may a more detailed recorded message be left without running afoul of the terms of the Order? Along similar lines, if Sue Smith confirms that only she may access any messages left at a specific number, but the voicemail greeting discloses that the number belongs to “Sue and John Smith,” does the debt collector have reason to suspect that John Smith may also access any messages left at the number?
Finally, and of great significance, is the FTC’s mandate that GC Services refrain from leaving messages “if the person has explicitly prohibited Defendant from leaving recorded messages on that phone number.” The FDCPA clearly requires that consumers make “cease” requests in writing, and courts interpreting the FDCPA have consistently refused to enforce partial “cease” requests. Now, the FTC’s Order expressly allows for verbal partial “cease” requests, whereby consumers can explicitly prohibit this one debt collector from leaving recorded messages on their voicemail.
While the Order is only binding on GC Services, it is nonetheless instructive industry-wide. At a minimum, the Order may shed light on the FTC’s enforcement perspective with respect to limitations imposed on leaving recorded messages. Industry members should carefully review the conditions imposed in the Order and consider whether the adoption of some or all of the requirements is feasible.