Another Reason For Collectors To Be Cautious When Calling Consumer Cell Phones

John Rossman

A majority of younger consumers today have no landline and rely solely upon a cell phone for communicating with others.  While the legal difficulties arising under the Telephone Consumer Protection Act for contacting a consumer on a cell phone are well-documented, a more nuanced issue took center stage recently.

On July 22, 2015, the CFPB issued a Consent Order assessing a total of $18.5 million against Discover Bank and other companies alleging that they – among other things – contacted consumers on their cell phones before 8 a.m. or after 9 p.m. in the time zone of residence of the consumer.  Read the full text of the consent order here

With legislation during the past decade allowing consumers to retain a cell phone number — even when changing carriers or plans — many consumers retain the same cell phone number (including area code) for years while sometimes moving to other parts of the country in different time zones.  This is especially true for college students who may travel across the country for school.

The Discover Consent Order Places the Burden on the Collector

In the Discover Consent Order, the CFPB alleged the following:

Prior to February 2013, Respondent initiated over 150,000 collection calls to the cellular phone numbers of student-loan borrowers before 8 a.m. or after 9 p.m. in the time zone of the consumer’s address.

For borrowers whose cell phone number area code corresponded with a time zone different from the time zone of the customer’s mailing address, Respondent’s collection calls frequently occurred before 7 a.m. and after 10 p.m. in the time zone of the consumer’s address.

Many of these consumers may have received multiple collection calls at these inconvenient times. Over 1,000 consumers received dozens of calls at inconvenient hours.

Further, in the Consent Order, the CFPB prohibited the following:

Placing any calls to consumers before 8 a.m. or after 9 p.m. as determined by the time zone of the consumer’s known address and the time zone of the consumer’s phone number, unless the consumer has expressly authorized Respondent to make calls within those time frames. To the extent Respondent has multiple addresses or phone numbers for the consumer, Respondent must ensure that any calls made to the consumer fall within the 8 a.m. to 9 p.m. window in each location in which the consumer might reside based on the address and phone information known to Respondent . . .(emphasis added).

How Can we Know the Time Zone where the Consumer Resides?

The Discover Consent Order will require changes in the scrubs that creditors and debt collectors perform to determine the place of residence of the consumer.  Certainly if there is information in the business records of the financial institution that the consumer stated his or her place of residence – or what times are inconvenient for a call – this could be compelling, but it is possible that none of these records accurately reflect the actual place of residence of the consumer. 

This order may require comparing the area code of the number called with the zip code of the consumer.  If there is a discrepancy among the phone number(s) and address(es) for the consumer in the records of the financial institution, the safest approach may be to ensure that calls are made at times that would be after 8 a.m. and before 9 p.m. in ALL TIME ZONES in which the records indicate the consumer may reasonably reside (provided that such times are not known to otherwise be inconvenient for the consumer). 

Given the data that must be weighed by a creditor or debt collector in determining where a consumer resides – the area code of the number called, the zip code of the residence of record, any statements by the consumer about his or her place of residence – it is certain that the Discover Consent Order will be the start of yet another flood of consumer lawsuits against the collection industry regarding the calling of consumer cell phones.

This article is provided only as a general discussion of legal principles and ideas. Every situation is unique and must be reviewed by a licensed attorney to determine the appropriate application of the law to any particular fact scenario. If you have a legal question, consult with an attorney. The reader of this publication will not rely upon anything herein as legal advice and will not substitute anything contained herein for obtaining legal advice from an attorney. No attorney-client relationship is formed by the publication or reading of this document. Moss & Barnett, A Professional Association, assumes no liability for typographical or other errors contained herein or for changes in the law affecting anything discussed herein.