The DAKCS team recognizes that the recent decision by a Florida federal district court concerning voice messages with the Mini-Miranda is of concern to everyone in the industry. We are providing our clients with the details of the ruling and suggestions from the ACA on how to effectively deal with voice messaging in light of the decision.
Voice Message Providing the Mini-Miranda May Violate Third-Party Disclosure Prohibitions
A Florida federal district court recently denied a collector's motion to dismiss in a case addressing the FDCPA's meaningful disclosure requirement and prohibition on third-party disclosure concerning voice mail messages left for consumers. The increase in litigation based on a collector's alleged failure to include the Mini-Miranda disclosure in voice messages left for consumers has left debt collectors grappling with the issue of what language must be stated when leaving a message for a consumer. The obvious concern posed by leaving a message containing the mini-Miranda disclosure is the risk of potential third-party disclosure. In a recent case before the Southern District of Florida, the court denied the debt collector's motion to dismiss for failure to state a claim, holding that providing the Mini-Miranda disclosure in a voice message may violate the third-party disclosure prohibitions of the Fair Debt Collection Practices Act (FDCPA) when the message is heard by a third party. In this case, the collector left the consumer a voice message which contained the Mini-Miranda disclosure provided in language similar to that suggested by ACA International in response to the Foti decision. The consumer subsequently brought suit against the collector for a violation of § 805(b) of the FDCPA, which prohibits the disclosure of the consumer's debt to most third parties. The relevant question before the court was whether or not the third-party disclosure prohibitions of § 805(b) applied to a voice message left at the consumer's home. The collector argued § 805(b) did not apply to a voice message left at the consumer's home because the collector was not communicating with a third party and a forewarning was included in the message which directed anyone other than the consumer to disconnect. The court disagreed, finding the warning included in the message did not necessarily remove the message from the statutory restriction on third party communications. The court determined a collector may violate § 805(b) if he leaves a message for a consumer when he is aware the message may be heard by others. The court noted the forewarning to disconnect could perhaps persuade other persons from listening to the message, but nothing in the message would alert the consumer to disconnect if he were listening to it in the presence of others. The court also found "prior consent of the consumer given directly to the debt collector" is not provided if a third party, or the consumer in the presence of a third party, continued to listen to the message in spite of the warning. Therefore, the court found the consumer stated a claim under § 805(b) and denied the collector's motion to dismiss. The court noted its ruling would make it difficult for a collector to comply with §§ 805(b), 806(6), and 807(11) when leaving a message on a consumer's voice mail. However, the court found no reason that a collector is entitled to use voice messages, and noted a collector has other methods to reach consumers including postal mail, in-person contact, and speaking directly via telephone. The court also held its ruling did not offend the First Amendment, as the prohibition on the message in question was tailored to serve governmental interest in protecting a consumer's privacy and the collector had alternative methods of communication available. Finally, the court declined to rule on the collector's bona fide error defense as there was a factual dispute as to the collector's intent when she left the message.
In light of this decision and previous decisions regarding the leaving of messages, the most prudent course of action for the collection industry would be to cease leaving messages for consumers. The next most prudent course of action is to cease leaving messages for consumers in the 11th Circuit which includes Florida, Georgia and Alabama. The next most prudent course of action is to cease leaving messages for consumers located in the Southern District of Florida.
For those members who choose to continue leaving messages for consumers, ACA has amended its recommended message in regards to the Foti decision to address the concerns raised by the U.S. District Court for the Southern District of Florida. The proposed message is as follows (new language in bold): This is a message for Mary Smith. If you are not Mary Smith, please hang up or disconnect. If you are Mary Smith, please continue to listen to this message. There will now be a three second pause in this message. (pause) By continuing to listen to this message, you acknowledge you are Mary Smith. Ms. Smith, you should not listen to this message so that other people can hear it as it contains personal and private information. There will now be a three second pause in this message to allow you to listen to this message in private. (pause) This is Bob Jones from ABC Collection Agency. This is an attempt to collect a debt and any information obtained will be used for that purpose. Please contact me about an important business matter at [phone #].
ACA members are encouraged to consult with qualified legal counsel to determine how to address the issue of leaving voice mail messages with consumers when attempting to collect a debt.