Since the Foti decision in 2006, the debate has raged on as to when and how a message may be left without violating the FDCPA. See Foti v. NCO Fin. Sys., Inc., 424 F. Supp. 2d 643 (S.D.N.Y. 2006); Zortman v. Christensen & Assocs., Inc. 870 F. Supp. 2d 694 (D. Minn. 2014). An Oregon District Court recently joined the fray and the opinion emphasizes that the decision is often specific to the facts. See Peak v. Professional Credit Service, C.A. No. 6:14-cv-01856-AA, 2015 U.S. Dist. LEXIS 162149 (D. Ore. Dec. 2, 2015).
In Peak, the consumer alleged that the collection agency violated the FDCPA when it left two messages for her on her cell phone which were overheard by third parties. Prior to the calls in question, Ms. Peak had entered into a payment arrangement with the collection agency. During the course of payments, the agency contacted Ms. Peak to confirm her debit card payment information and at the same time, confirmed that the number at which it called her was the best number to reach her. Key to this decision, Ms. Peak was contacted while she was in her car and therefore, the collection agency was aware that the number was a cell number. Unbeknownst to the collection agency, however, Ms. Peak’s live-in boyfriend had cancelled his cell phone coverage and was using Ms. Peak’s phone when it was available and had access to her voice mail messages. The very next day, the collection agency attempted to reach Ms. Peak on her cell number and reached her voice mail. The voice mail message stated:
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.
In response the agency left the following message:
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.
Ms. Peak’s boyfriend, while checking the voicemail messages later, heard the message. About a month later, the collection agency called Ms. Peak again and left the identical message. This time, Ms. Peak chose to listen to the message through the speaker function of her cell phone in the employee break room at her place of employment (which ironically, was another collection agency) and the message was heard 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 1692b…without prior consent of the consumer given directly to the debt collection, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a postjudgment judicial remedy, a debt collection 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 court concluded that while the messages qualified as “communications” under the FDCPA, they were not communications “with” a third party. In doing so, the court applied a negligence standard, holding 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.” Peak at * 14. “No matter how careful a debt collector is, there is always some risk a third party will intercept the communication… Congress intended the FDCPA to cause debt collector to be very careful in the way they communicate with consumers, but it did not intend the statute to completely shut down all avenues of communication ad force debt collectors to file a lawsuit in order to recover the amount owed…Moreover…a true strict liability standard would invite abuse…A negligence standard 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” Peak at *15-16.
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.” Id. at *16-17.