In Peak v. Professional Credit Services, No. 6:2014cv01856, a consumer alleged that a collection agency violated the FDCPA when it left two voicemail messages for her on her cell phone, which was ultimately heard by third parties. The collection agency had had prior contact with Peak on her cell phone, and the collection agency was aware that it was a cell phone and that it had permission to contact Peak at that number. Sometime later, Peak’s live-in boyfriend cancelled his cell phone coverage and began using Peak’s phone when it was available. The boyfriend had access to Peak’s voicemail messages. Subsequently, the collection agency attempted to contact Peak on her cell phone and reached her voicemail. The collection agency representative was greeted with this message:
Hi, you’ve reached Kat. I’m not available to come to the phone right now but if
you’ll leave your name and number I’ll definitely give you a call back. Have an
absolutely wonderful day.
The following message was left on her voicemail:
Hi, this is Katie and I have an important message from Professional Credit Service.
This is a call from a debt collector. Please call 866-254-2993.
The boyfriend heard the message while checking the voicemail messages. Approximately one month later, the collection agency called Peak again and left the identical message. Peak decided to listen to the message through the speaker function of her cell phone in the employee break room at her place of employment and the message was overhead by her employer.
Ms. Peak filed suit alleging the collection agency violated Section 1692c(b) of the FDCPA asserting that the overheard messages were unauthorized communications with third parties.
Section 1692c(b) provides:
Except as provided in section 804, without the prior consent of the consumer given directly to the debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a post judgment judicial remedy, a debt collector may not communicate, in connection with the collection of any debt, with any person other than the consumer, his attorney, a consumer reporting agency if otherwise permitted by the law, the creditor, the attorney of the creditor, or the attorney of the debt collector.
The Oregon District Court determined that while the messages were “communications” under the FDCPA, they were not communications “with” a third party. The District Court held that “a communication is only ‘with’ a third party under section 1692c(b) if the debt collector knows or should reasonably anticipate the communication will be heard or seen by a third party.”
Reviewing the facts of the case, the court determined it was not reasonably foreseeable that the phone messages would be overheard by Ms. Peak’s boyfriend or employer. Key to the court’s conclusion was the fact that the calls were made to a cell phone and the cell phone’s outgoing message only identified her as the owner of the phone. “The cell phone/land line distinction is important because a caller may reasonably assume messages left on a cell phone’s voicemail system will not be accidentally overheard, as they must be accessed through the cell phone itself. By contrast, if any person is in the vicinity of a land line answering machine, that person may overhear a message as it is being left.”
The District Court noted that Congress intended the FDCPA to cause debt collectors to be careful in the way they communicate with consumers, but it did not intend to completely shut down all avenues of communication. Rather than a strict liability standard, the District Court concluded that a negligence standard, which it used, strikes the right balance because it holds debt collectors liable for failure to take reasonable measures to avoid disclosure to third parties, but does not require them to avoid such disclosure at all costs.
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