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Members of the trade group ACA International, the Association of Credit and Collection Professionals, have always placed compliance, training, and innovation as guide posts for their collection operations. This year is no exception.

During ACA’s recent convention and expo in San Diego, California, I joined David Kaminski, senior partner at the law firm Carlson & Messer LLP, to lead a standing-room-only session in which we detailed the “how to’s” of text messaging, email communications, chat, and E-Sign. Our goal was to translate complex compliance requirements into everyday, scalable contact management solutions.

During our session, we tried to help attendees understand not only how to build a robust digital communication program under current law, but also how the Consumer Financial Protection Bureau’s (CFPB) new proposed rules for debt collection will impact text and email communications.

As I mentioned during the session, one of the most significant road blocks debt collectors must overcome before implementing a digital communications program is compliance with the Electronic Signatures in Global Commerce Act (E-Sign).

Text Messaging Session: Key Takeaways

  • The Telephone Consumer Protection Act (TCPA) controls when and how a text message may be sent to a consumer’s mobile phone if sent using an automated platform.
  • The Fair Debt Collection Practices Act (FDCPA) and state law requirements impact text message programs offered by third-party debt collectors.
  • The Cellular Telephone and Internet Association (CTIA) controls the format and content of short-code text communications.
  • Text messages are deemed as calls, so days of week, times of day, and other calling restrictions DO apply to text communications.
    Texts require consumer consent.
  • Texts are communications under federal and state law.
  • Texts are not writings.
  • Disclosures and verbiage otherwise required in written communications need not be included in text message communications.
  • Character restrictions are challenging but not insurmountable.
  • Terms and conditions must be presented to and agreed upon by the consumer before engaging in a short code/key word text message self-service program.
  • Senders of text messages must track delivery rates, bounce backs, deactivated or ported numbers, and open rates for URLs.
  • The CFPB’s proposed rules for debt collection impose requirements for the format of the text, the inclusion of the creditor’s name, the identification of the account(s), and the information that may or may not be included in the body of the text.

Email Communication Session: Key Takeaways

  • The FDCPA and state law requirements impact email communications between third-party debt collectors and consumers.
  • Emails are writings.
  • Emails require consumer consent.
  • Emails are communications under federal and state law.
  • Emails are not calls, so days of week, times of day, and other calling restrictions DO NOT apply to email communications.
  • Disclosures and verbiage otherwise not required in text communications need not be included in email communications.
  • Information may be included within the body of an email without worry of character restrictions.
  • Senders of emails must track delivery rates, bounce backs, and open rates for URLs when communicating with consumers using email.
  • The CFPB’s proposed rules for debt collection impose requirements for the format of the email; rules for the to, from, and subject line of the email; the inclusion of the creditor’s name; the identification of the account(s); and the information that may or may not be included in the body of the email.

Chat Communication Session: Key Takeaways

  • Chat sessions are controlled by the TCPA, the FDCPA, and in some respects the CTIA depending upon the business model of the sender (creditor, EBO, or first- or third-party debt collector).
  • Chat sessions are a form of text messaging and are more akin to a writing than a call.
  • Chat sessions are initiated by the consumer.
  • Chat sessions are considered a customer service offering.
  • Chat sessions are communications under federal and state law.
  • Chat sessions create a transcript which a consumer may keep and access later.
  • Chat sessions should be introduced with the FDCPA Miranda warning if it is the first communication with the consumer (third-party debt collectors only) along with a statement explaining it is a single conversation with the consumer (as opposed to multiple texts to the consumer).
  • Chat sessions should be concluded with an explanation to the consumer that the company’s agent is leaving the chat session.
  • Like texts and emails, chat sessions can be scripted.

Electronic Signatures in Global and National Commerce Act (E-Sign) Disclosure: Key Takeaways

  • E-Sign is the law which allows digital records, authorizations, and disclosures otherwise required by law to be provided to the consumer in writing and delivered to the consumer electronically.
  • E-Sign is the law which allows digital signatures (sounds and symbols) to be applied to electronic records electronically.
  • E-Sign requires the business to provide the consumer with a statement of rights as a condition of granting their E-Sign consent to receive required written disclosures electronically.
  • E-Sign is recognized by the CFPB as a required step when delivering required disclosures electronically; specifically, the validation notice, the name of the original creditor, and responses to a consumer’s request for verification of the debt (see new rules section 1006.42).

Start Communicating Electronically with Confidence and Ease

To assist members of the ARM industry, healthcare providers, and federal and state governments with their digital communication programs, Ontario Systems provides on-site and video conference consulting services. Whether you need help with policies and procedures, text message scripts, email templates, training or technology implementation, or even role-based training, our Ontario Systems consulting team is here to help.

 

Disclaimer: Ontario Systems is a technology company and provides this blog article solely for general informational and marketing purposes. You should not rely on the content of this material for any other purpose or as specific guidance for your company. Ontario Systems’ advice, services, tools and products described herein do not guarantee compliance with any law or industry standard. You are ultimately responsible for your own company’s actions and compliance efforts. Because everyone’s situation is different, you must consult your own attorneys, accountants, and/or other advisors to obtain specific advice on your company’s compliance, legal, tax, regulatory and/or other business needs. Despite Ontario Systems’ efforts to provide current and up-to-date information, you need to recognize that the information contained herein may become outdated quickly and may contain errors and/or other inaccuracies.

© 2019 Ontario Systems, LLC. All rights reserved. Information contained in this document is subject to change. Reproduction of this publication is not permitted without the express permission of Ontario Systems, LLC.

Ready to Text?

For a comprehensive guide to text messaging, check out our “Ready to Text?” eBook. In it, you’ll learn all the nuances, pitfalls, and timely developments you need to understand so you can connect with consumers on their terms. Download your free copy today.

Posted by Rozanne Andersen

Rozanne Andersen, J.D., serves as Ontario Systems’ Vice President and Chief Compliance Officer. She is responsible for leading Ontario Systems’ corporate efforts and response to the CFPB’s launch of compliance examinations in the ARM industry. Rozanne is a recognized thought leader in the area of compliance. Her advocacy work on behalf of the credit and collection industry has resulted in landmark legislation and regulation at both the state level and at the federal level with regard to the FDCPA, FCRA and HIPAA.
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