The first comprehensive federal debt collection regulations interpreting the Fair Debt Collection Practices Act (FDCPA) take effect November 30, 2021, and NCLC’s Fair Debt Collection treatise has been thoroughly revised digitally to include comprehensive analysis of the new regulations. At the same time, the treatise’s digital version is now thoroughly reorganized, rewritten, and updated to provide a more accessible analysis of the Fair Debt Collection Practices Act (FDCPA).
This article summarizes the Consumer Financial Protection Bureau’s (CFPB) new Regulation F and links to NCLC’s Fair Debt Collection where every Regulation F rule provision and official interpretation is examined in much more detail. This article also provides a list of Regulation F provisions addressing collectors’ use of email, text messages, and other electronic media. The article further lists CFPB resources and other free resources offering additional Regulation F guidance.
New Regulation F provides new consumer rights but also is likely to lead to new consumer abuses. As with the FDCPA, the regulations apply to debt collectors as defined by the FDCPA, which generally includes debt collection agencies, collection attorneys, debt buyers, and mortgage servicers that obtained the account in default, and generally excludes original creditors.
Regulation F: Background and Key Provisions
The CFPB issued in two parts the rules significantly expanding on amending Regulation F, 12 C.F.R. part 1006, implementing the FDCPA. Part one focused on communications. See 85 Fed. Reg. 76,735 (Nov. 30, 2020). Part two focused on disclosures. See 86 Fed. Reg. 5766 (Jan. 19, 2021).
The CFPB confirmed that both parts of the regulations are effective on November 30, 2021, after withdrawing a proposed delay in the effective date. See 86 Fed. Reg. 48,918 (Sept. 1, 2021).
Significant Regulation F provisions:
- • Set out a presumption that a certain number of calls per week is or is not an FDCPA violation (with factors that can rebut those presumptions), as examined at NCLC’s Fair Debt Collection § 6.7;
- • Permit certain use of electronic communications to provide disclosures required under the FDCPA, as examined at NCLC’s Fair Debt Collection § 9.3.2;
- • Give consumers the right to stop specific types of communications, as examined at NCLC’s Fair Debt Collection § 6.9;
- • Require notice of the right to opt out of electronic communications, as examined at NCLC’s Fair Debt Collection § 5.9;
- • Provide a safe harbor from FDCPA liability for third-party disclosures when communicating with a consumer by email or text message where the email address or phone number were obtained using specified methods, as examined at NCLC’s Fair Debt Collection § 5.7.9;
- • Exclude certain limited debt collector voicemail messages left for consumers from some FDCPA requirements, as examined at NCLC’s Fair Debt Collection § 4.9;
- • Set out an expanded list of information that a debt collector must provide to a consumer at the outset of debt collection communications, as examined at NCLC’s Fair Debt Collection § 9.4;
- • Provide a model notice containing such information, as examined at NCLC’s Fair Debt Collection § 9.5.2;
- • Prohibit debt collectors from bringing or threatening to bring a legal action against a consumer to collect a time-barred debt, as examined at NCLC’s Fair Debt Collection § 7.4.9; and
- • Require debt collectors to take certain actions before furnishing information about a consumer’s alleged debt to a consumer reporting agency, as examined at NCLC’s Fair Debt Collection § 8.12.
New Rights for Consumers
Some aspects of Regulation F will provide additional protections to consumers with alleged debts in collection. The list below highlights some beneficial aspects of the new regulations, although some of these provisions still have significant flaws.
- • Ability to Stop Collection Calls: If a consumer requests that a collector stop using a particular method of communication (e.g., all phone calls or emails or texts), the collector must stop using that specific means of communication. The consumer’s request can be made orally. See NCLC’s Fair Debt Collection § 6.9.
- • Preconditions to Collector Credit Reporting: A debt collector must speak to a consumer or send a letter or electronic message about an alleged debt before reporting the account to a credit bureau. See NCLC’s Fair Debt Collection § 8.12. While there are still concerns about some consumers not receiving this notice, this change decreases the likelihood that the consumer first learns about an alleged debt when they try to access credit to buy a car or home, or an employer does a credit check for a new job.
- • Limits on the Frequency of Collection Conversations: Collectors generally have to wait a week after speaking to a consumer before placing another call about that account. See NCLC’s Fair Debt Collection § 6.7. Unfortunately, as discussed below, these limits are per debt, meaning that the collector could continue to contact the same consumer about other accounts if there are multiple accounts placed for collection with that collector.
- • Expanded Information on Required Debt Collection Notices: Collectors must expand the information that they provide to consumers when they provide a validation notice, which may make it easier for the consumer to identify the alleged debt or exercise their debt collection rights. See NCLC’s Fair Debt Collection § 9.4. Unfortunately, some of the information and aspects of the design of the model validation notice are still likely to be unclear to many consumers. See NCLC’s Fair Debt Collection §§ 9.4, 9.5.
Many Areas of Concern Remain for Consumers
Unfortunately, some of the practices authorized by Regulation F may harm consumers. The list below highlights some of the harmful conduct that is permitted under the new rules.
- • Excessive Phone Calls: Collectors can harass consumers by making up to seven attempted calls per week per debt, either to the consumer or to friends and family to ask for the consumer’s contact information. A consumer with five medical accounts in collection could receive thirty-five attempted calls per week. See NCLC’s Fair Debt Collection § 6.7.
- • Electronic Validation Notices to Consumers Are Now Allowed: The CFPB states that collectors can provide required validation notices electronically in initial communications without complying with the federal E-SIGN Act. See NCLC’s Fair Debt Collection§ 9.3.2. This makes it more likely that consumers will not receive these notices and more difficult for those whose primary internet access is a smartphone to read, understand, print, and save notices if they do receive them.
- • Oral Notices to Consumers Are Now Allowed: Collectors can provide validation information orally in an initial communication despite the large volume of information required to be disclosed in the notice. See NCLC’s Fair Debt Collection §§ 9.3.1, 9.4.
- • Required Notices to Consumers Need Not Be in the Language Used in the Collection Contact: Collectors are not required to provide validation notices in Spanish or other languages, even when the collector has already communicated with the consumer in a non-English language or otherwise has information about the consumer’s language preference. See NCLC’s Fair Debt Collection § 9.5.4.
- • Electronic Collection Communication Allowed Without Consumer Consent: Collectors can use emails and other electronic communications to contact consumers unless the consumer opts out. Requiring an opt-out rather than requiring collectors to obtain consumer consent is more likely to result in missed messages, i.e., if collectors use old contact information or communications are sent to spam. Privacy may also be violated if messages are viewed by others, including employers. Procedures to reduce third-party disclosures are optional. See NCLC’s Fair Debt Collection §§ 5.7.9, 5.9, 9.3.2.
- • Time-Barred Debt Collection: Collectors can still pressure consumers to pay debts that are beyond the statute of limitations. They are prohibited from suing or threatening to sue on time-barred consumer debts, but, in some states, they can still sue if a consumer inadvertently revives the statute of limitations through a partial payment or acknowledgment made after pressure from collectors. See NCLC’s Fair Debt Collection § 7.4.9.
- • Decedent Debt: Collectors can communicate with a wide variety of grieving people about debts owed by the deceased and, in most cases, will not have to provide validation notices or respond to disputes. See NCLC’s Fair Debt Collection §§ 126.96.36.199, 5.10, 9.2.3.
Regulation F and Use of Electronic Mediums to Collect Debts
One of the most significant aspects of Regulation F is its extensive treatment of emails, texts, and other electronic mediums of debt collector communication. Regulation F defines all of these as “communications” within the scope of the FDCPA. See NCLC’s Fair Debt Collection § 4.2.1.
Regulation F generally allows collectors to use electronic communications in collecting debts and in making required disclosures. The regulation provides the following rules for electronic communication in connection with collection of a debt:
- • Debt collectors cannot send collection emails to a consumer’s email address that the debt collector knows is provided to the consumer by the consumer’s employer, unless the consumer’s provision of the address to a debt collector has met certain conditions. See NCLC’s Fair Debt Collection § 8.10.
- • Regulation F provides a safe harbor if the consumer’s provision of an email address or a text message number meets certain conditions, and the collector has no knowledge that prior electronic communication has led to disclosure to a third party. See NCLC’s Fair Debt Collection § 5.7.9.
- • The limits and presumptions as to a debt collector communicating at an unusual or inconvenient time apply to electronic communication. An electronic communication occurs when the debt collector sends the communication, not, for example, when the consumer receives or views it. See NCLC’s Fair Debt Collection § 5.4.2.
- • Electronic communication media are not associated with a place, and usually their use does not violate the prohibition on contacting the consumer at an inconvenient place. Nevertheless, there is a violation if the debt collector knows that the communication will be received by the consumer at an unusual place, or at a place that the debt collector knows or should know is inconvenient to the consumer. See NCLC’s Fair Debt Collection § 5.4.3.
- • Regulation F has no specific frequency standards for emails or text messages sent to consumers, but they are still subject to the general standard as to harassment. Phone call frequency not violating Regulation F standards can still be a violation if done in conjunction with emails or text messages. See NCLC’s Fair Debt Collection § 188.8.131.52.
- • Regulation F requires debt collectors to provide notice in any electronic communication to a consumer of the right to opt out of a specific medium of electronic communication, and must disclose to the consumer a reasonable, simple, and free method to opt out of a specific mode of electronic communication. See NCLC’s Fair Debt Collection § 5.9.
- • Where a consumer has opted out of a medium of electronic communications, the collector can communicate with the consumer through that medium only in limited circumstances. See NCLC’s Fair Debt Collection § 6.9.
- • Regulation F prohibits debt collector use of social media to communicate with a person in connection with collection of a debt if the message would be visible to the person’s social media contacts or to the general public. See NCLC’s Fair Debt Collection § 8.11.
- • Debt collectors must disclose their identity as a debt collector when requesting—in connection with the collection of a debt—to be added as one of the consumer’s contacts on social media. See NCLC’s Fair Debt Collection § 7.4.2.
- • When using social media to obtain a consumer’s location information from a third party, the profile must accurately identify the debt collector’s individual name or alias. See NCLC’s Fair Debt Collection § 7.4.2.
Debt Collector Use of Electronic Mediums to Make Required Disclosures
Regulation F sets restrictions on a debt collector’s use of electronic mediums to provide validation notices and other required disclosures:
- • Electronic validation notices must include the right to opt out of that means of communication. See NCLC’s Fair Debt Collection § 184.108.40.206.
- • Any electronic validation notice must be sent in a manner that is reasonably expected to provide actual notice and in a form that the consumer may keep and access later. See NCLC’s Fair Debt Collection § 220.127.116.11.
- • When an electronic validation notice is sent after an initial communication, the debt collector must first have complied with the E-SIGN Act, including its consumer consent provisions. See NCLC’s Fair Debt Collection § 18.104.22.168.
- • Regulation F sets out optional guidelines as to the form for an electronic validation notice. See NCLC’s Fair Debt Collection § 9.5.3.
- • After a consumer’s request for verification of a debt or the identity of the original creditor, the debt collector response—if electronic—must be sent in a manner that is reasonably expected to provide actual notice and in a form that the consumer may keep and access later. See NCLC’s Fair Debt Collection § 22.214.171.124.
- • With the exception as to notice to the consumer that the consumer’s dispute is duplicative, the debt collector—prior to an electronic response—must comply with E-SIGN’s consumer consent provisions. See NCLC’s Fair Debt Collection § 126.96.36.199.
Free CFPB Resources on New Regulation F
Below is an annotated list of free resources that CFPB provides to help practitioners understand the new FDCPA Regulation F, with links to each resource:
- • Interactive Regulations: This online version of the regulations puts the official interpretations of the rules next to the relevant text of the regulations. Make sure that you are looking at the CFPB version of Regulation F that is effective November 30, 2021.
- • Federal Register Notices Explaining the Rules (Part 1 and Part 2): Regulation F was published in two parts. Note that Part 2 amends sections of the regulations that were released in Part 1. In addition to containing the regulations and official interpretations, the Federal Register notices also contain the CFPB’s discussion of each section.
- • Small Entity Compliance Guide: This guide provides a detailed, 116-page overview of Regulation F.
- • Executive Summaries (Part 1 and Part 2): Each document provides a 10-page overview of the contents of the debt collection regulations.
- • Model Validation Notice: This webpage contains links to PDF, Word, and InDesign versions of the model validation notice.
- • Regulation Inquiries: This webpage allows users to submit a question about Regulation F directly to the CFPB.
- • Frequently Asked Questions: This webpage addresses questions regarding compliance with Regulation F.
- • Debt Collection Rule: Disclosing the Model Validation Notice Itemization Table: This document provides guidance about the itemization portion of the model validation notice.
Other Free Resources on New Regulation F
- • NCLC webinars (Part 1) and (Part 2): These free, hour-long webinars provide a concise overview of the contents of the debt collection rules.
- • National Association of Consumer Advocates webinar: This presentation by three members of the CFPB’s Office of Regulations, titled Demystifying Communications Under the New FDCPA Regulations, is available to consumer advocates (non-members must be screened).
- • AccountsRecovery.net webinars: This free collection industry resource provides numerous short videos about different parts of the debt collection rule.
- • ACA International: Article providing an overview of regulations about the validation notice, including an annotated model validation notice.
NCLC’s Two-Volume Fair Debt Collection Treatise Analyzes Regulation F
NCLC’s Fair Debt Collection (Ninth Edition) is the definitive, two volume treatise (1774 pages) covering all aspects of the FDCPA, as well as state statutory protections, tort law claims, the relation of the Bankruptcy Code to debt collection, and over ten other applicable federal laws (including the Telephone Consumer Protection Act, Fair Credit Reporting Act, and Fraudulent or Defamatory Use of the Mails). Available both in print and digitally, of special note are over 15,000 case summaries of FDCPA court decisions. Pinpoint access to these 15,000 case summaries is provided by NCLC’s digital FDCPA Case Connector, allowing immediate access to relevant summaries based upon the user’s selections from any combination of court, topic, year, citation, party name, and keyword.
NCLC’s Fair Debt Collection has undergone its largest overhaul in over thirty years, not only including detailed analysis of Regulation F, but with extensive reorganization and rewriting to make the treatise even more valuable for today’s fair debt collection litigation. While a new digital edition will be officially released soon, an almost final digital version, including all the chapters with detailed analysis of Regulation F, has just been posted to nclc.org/library. Section 188.8.131.52 also includes a handy table showing where in the book various Regulation F provisions are examined, and also showing the corresponding FDCPA provisions to the Regulation F provisions. Also now posted with the digital chapters is a digital version of the full text of Regulation F, with each official rule interpretation included next to (but set off from) the corresponding rule provision.
The final digital version of Fair Debt Collection will be released soon, but supply chain issues are delaying the print version for several additional months. The new print edition will be sent automatically and at no charge to those with an active print and digital subscription.
Updated: Nov. 30, 2021