Customers’ Concerns About Obtaining Consent

December 5, 2019

The Big Takeaway during the DAKCS Interchange Summit

The 2019 DAKCS Interchange Summit was a tremendous success. In October, agencies from all over the country participated in two and a half days of collaboration and discussion in beautiful Ogden, Utah.

Best practices and enhancements to DAKCS products were also part of the conversation. However, understanding the details of the Consumer Financial Protection Bureau’s (CFPB or Bureau) Notice of Proposed Rulemaking (NPR) dominated the conference. 

Joann Needleman, Industry Advocate and Attorney, speaking during the DAKCS Interchange Summit.

Thursday, October 17, 2019

Conference attendees were broken up into six breakout groups to discuss various topics addressed in the NPR. The topics were: (1) communicating using email and text, (2) the limited content message, (3) restrictions on communications, (4) calls caps and frequency limitations, (5) the Model Form validation notice, and (6) electronic disclosures.

Each group discussed the following four questions: 

Most Common Concern

The common concern that was addressed in all of the breakout groups centered on the issue of consent. Generally, the NPR does not permit the transfer of consent from creditor to debt collector.

The consent to contact, as opposed to E-SIGN consent, must be given by the consumer directly to the debt collector. Attendees found this requirement not only difficult but contradictory to the consent requirements under the TCPA, which permits contact with a consumer through an ATDS if the consumer has already provided consent to the creditor.

Attendees were optimistic about the ability to use alternative forms of communication, like email and text, but again saw limitations if they were otherwise required to get consent from the consumer directly. 

Consent Management Permissions

Consent management and tracking, therefore, will be the keys to future operations if the NPR becomes a final rule. Remember that consent does not have to mean that the debt collector must go to great lengths to reach the consumer in order to obtain consent.

The NPR does permit consent to be obtained by the fact that the consumer makes an affirmative outreach to the debt collector. So, if consumer emails or texts a debt collector, consent has been received, and capturing that interaction is vitally important.

As noted in prior blogs and webinars, the new era of debt collection in the electronic age means that debt collectors must think of ways to drive consumers to contact them, rather than the other way around. Consent cannot be considered in a vacuum; an overall collection strategy that starts with a robust website and the ability to offer consumers a variety of choices with which to communicate is key. 

Establish Trust Between Parties

Effective consent can be obtained where there is trust between the parties. Unless the CFPB otherwise expands the ability to obtain consent and permits the transfer of consent from creditor to debt collector, agencies must recognize that consent will only be achieved when a consumer is confident that reaching out to a debt collector will be a positive experience that will resolve their debt. 

2019 Joann Needleman Headshot
About the Author: Attorney and industry advocate Joann Needleman, Practice Leader and Member of Clark Hill PLC brings her experience and insight when it comes to consent, NPR, TCPA, FDCPA, and Electronic Communications.

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