Under Section 1692d of the Fair Debt Collection Practices Act (“FDCPA”) a collector may not engage in any conduct the natural consequence of which is to harass, oppress or abuse any person in connection with the collection of a debt. This conduct includes but is not limited to, causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with the intent to annoy, abuse or harass any person at the called number. 15 U.S.C. § 1692d(5).
It appears the biggest issue with compliance under the FDCPA is abiding with the sections of the statute that are ambiguous…where should a collector draw the line and whose interpretation should be used to determine when that imaginary line has been crossed? This question often accompanies the discussion of what constitutes repeated and continuous contact as set forth in Section 1692d(5). In this grey area who determines what amounts to repeated and continuous contact, the consumer or the collector?
Currently, there is no hard and fast rule which establishes how many phone calls to a debtor are deemed excessive and harassing, and hence a violation of the FDCPA. If a case makes it a court of law, individual judges are left to decide whether the conduct of the collector amounts to a violation. In Arteaga v. Asset Acceptance, LLC, the court explained that while the FDCPA is generally a strict liability statute, meaning that even if an inadvertent violation occurs, liability normally follows. 733 F.Supp.2d 1218, 1227 (E.D. Cal. 2010). However, certain sections like 1692d(5) add an intent requirement that must be proven by the debtor, making the standard by which harassment is judged an objective one.
While the FDCPA does not define what repeatedly or continuously means, like its express prohibition of the timing of calls (not before 8:00 a.m. or after 9:00 p.m.), there is no such definition in the FDCPA against calling a debtor every day or even more than once in the same day. The Federal Trade Commission, the federal agency charged with enforcing the FDCPA, defines continuously as “a series of collection calls, one right after another.” The FTC defines repeatedly as “calling with excessive frequency under the circumstances.” FTC Statements of General Policy or Interpretation Staff Commentary on the FDCPA, 53 Fed. Reg. 50097, 50105 (Dec. 13, 1988).
There are however several factors that go into determining whether the contact from a collector amounts to the “repeated” and continuous” harassment referred to in the FDCPA. Some of these factors include, immediate call backs, calls after a cease and desist request, high volume of calls over a short period of time, calls after reference to an attorney, calling a debtors place of employment, daily phone calls and leaving messages.
We have covered this topic previously including blogs (click to read): Multiple Calls From Collectors as Harassment, What Are Too Many Calls Considered Harassment, and Multiple Calls -What Should I Do.
Indeed, call volume is a complaint that we hear from many consumers every day. SmithMarco is committed to protecting consumers’ rights. If you are receiving repeated or continuous telephone calls from a debt collector or feel your rights have been violated in any way under the FDCPA, contact SmithMarco P.C. for a free case review.