Can Debt Collectors Send Text Messages under FDCPA?

What's Acceptable Communication in the Age of the Smart Phone

Woman texting on mobile in kitchen
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How we communicate with each other and how businesses, like debt collectors, communicate with us has changed dramatically over the years. Whereas a perfectly timed phone call or a letter was once the norm, calls at any time and text messages are more prevalent.

Almost every American adult has a cell phone. According to Pew Research, 91% of American adults have a cell phone, almost 35.8% of households only have a cell phone, and 15.9% of people receive all calls on their cell even though they have a landline phone.

While many Americans prefer text messages to phone calls – about one-third reports Pew Research – many prefer not to be contacted by businesses that way, especially when it comes to debt collectors. If you’ve ever received a text message from a debt collector, you’ve probably wondered whether it was legal. It’s certainly unusual. Unfortunately, there’s not currently a clear answer.

The Debt Collection Law Doesn't Address Text Messaging

The Fair Debt Collection Practices Act is the Federal law that defines what third-party debt collectors can and cannot do when they’re collecting a debt from a consumer. The law, which was passed in 1977, doesn’t address many forms of modern communications. Text messaging, for example, wasn’t introduced until 1992, 15 years after the FDCPA was passed and the law hasn’t been updated to address collection activity via text message and modern communication mediums.

The FDCPA doesn’t explicitly say whether debt collectors can or cannot use text messages – of course, because text messaging wasn’t around when it was written. However, the Telephone Consumer Protection Act of 1991 could be applicable.

The TCPA limits (and sometimes prohibits) the use of autodialing and unsolicited phone communications without “prior express consent” which basically means unless you’ve already indicated that it’s ok to be contacted that way.

Debt collectors have argued that listing a cell phone number on your credit card or loan application is essentially giving consent to be contacted at that number for issues involving your account – an argument that’s been accepted in courts, at least from companies sending telemarketing messages. Still, it’s tricky because the TCPA mainly applies to telemarketing communications, not necessarily debt collection calls.

Recent Litigation Involving Collection Text Messages

In the civil suit, Gutierrez v. Barclays Group, a case between a cardholder and the original credit card issuer, the Court determined that the text messages from Barclays to Gutierrez were legal up to the point that Gutierrez replied with a “STOP” message. At that point, Barclays should have ended the text messages, even though the stop communications request wasn’t made in writing. This differs slightly from the FDCPA, which requires a written letter to end communications from a debt collector. (The suit could not have been made under the FDCPA since that law applies only to third-party debt collectors.)

In September 2013, the Federal Trade Commission recently fined a debt collector $1 million for FDCPA violations involving text messaging, but not directly because of the text messages.

In this particular suit, the companies were fined for failing to identify themselves as debt collectors rather than for the text messages themselves. That the FTC did not directly address text messaging as a form of communication could indicate that it's an acceptable method for contacting debtors as long as all the other FDCPA rules are followed.

What We DO Know About Debt Collector Text Messaging

There’s no specific rule about debt collectors and text messages, but there are a few others that dictate how debt collectors can communicate, regardless of the medium:

  • Collectors can only contact you between 8 am and 9 pm your local time.
  • They have to identify themselves as debt collectors and they can’t reveal your debts to any third-party except your parent or guardian (if you’re under age 18) or your spouse.
  • They cannot repeatedly call you (or, in this case, send repeated text messages) to annoy or harass you.
  • They can’t contact you directly if they know you have an attorney.
  • They can’t use abusive or profane language. They can’t threaten you or threaten any legal action they can’t or don’t intend to take.
  • They have to stop communicating with you, by text messaging and any other way, if you send a written letter saying you no longer want to be contacted by them.

Know your rights with debt collectors, e.g. they have to identify themselves when contacting you. If you’re contacted via text messaging – or any other means – and you no longer want to be contacted that way, send a cease and desist letter by mail. Don’t simply reply via text message, your rights may not be covered under the FDCPA. Complain to the Consumer Financial Protection Bureau and your state Attorney General if a collector ignores your cease and desist letter or violates your rights in any other way.