In Torres v. ProCollect, Inc., 2012 WL 1969280 (D.Colo. 2012), Judge Babcock found wanting a voicemail message left for a debtor under the FDCPA because it did not identify the debt collection agency.
Thus, the only way for an identity disclosure to be meaningful to a consumer is if it discloses the name of the debt collection company. Moreover, “because the FDCPA … is a remedial statute, it should be construed liberally in favor of the consumer.” Johnson v. Riddle, 305 F.3d 1107, 1117 (10th Cir.2002). Given the information that § 1692d(6) targets, there are only three constructions of “meaningful disclosure of the caller’s identity:” either it requires disclosing the caller’s personal name (or alias), the debt collection company’s name, or both. A liberal construction favoring the consumer would require disclosing the debt collection company’s name. ¶ My interpretation is also consistent with the purpose of the FDCPA. “In passing the FDCPA, Congress found ‘abundant evidence of the use of abusive, deceptive, and unfair debt collection practices.’ “ Id. at 1117 (quoting 15 U.S.C. § 1692(a)). The FDCPA’s express purpose is to “eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.” Id. (quoting § 1692(e)). Indeed, its solicitude for consumers is such that it “protect[s] consumers who have been victimized by unscrupulous debt collectors, regardless of whether a valid debt actually exists.” Baker v. GC Serv. Corp., 677 F.2d 775, 777 (9th Cir.1982) (emphasis added); accord McCartney v. First City Bank, 970 F.2d 45, 47 (5th Cir.1992) (The FDCPA “makes debt collectors liable for various ‘abusive, deceptive, and unfair debt collection practices’ regardless of whether the debt is valid”). Requiring the disclosure of the debt collection company’s name mitigates the opportunity for abuse and deception that anonymity would wrought, thereby also eliminating any competitive advantage resulting therefrom. Such disclosure also helps the consumer “understand, make informed decisions about, and participate fully and meaningfully in the debt collection process.” See Clark v. Capital Credit & Collection Services, Inc., 460 F.3d 1162, 1171 (9th Cir.2006). ¶ Additionally, case law buttresses my conclusion. While neither a circuit court, see Costa v. Nat’l Action Fin. Servs., 634 F.Supp .2d 1069, 1074 n. 5 (E.D.Cal.2007), nor this Court has addressed whether § 1692d(6) requires disclosure of a debt collector’s company name, courts in other jurisdictions have. They “have uniformly held that it requires a debt collector to disclose the caller’s name, the debt collection company’s name, and the nature of the debt collector’s business.” Baker v. Allstate Financial Services, Inc., 554 F.Supp.2d 945, 949 (D.Minn.2008) (emphasis added); accord Valencia v. Affiliated Group, Inv., 2008 WL 4372895, *3 (S.D.Fla. Sept. 24, 2008) (unpublished); Hosseinzadeh v. M.R.S. Assocs., Inc., 387 F.Supp.2d 1104, 1112 (C.D.Cal.2005); Gilmore v. Account Mgmt, Inc., 2009 WL 2848278, *5 (N.D.Ga.2009); Davis v. Bonewicz, 2011 WL 5827796, *2 (E.D.Mo.2011); Fry v. Berks Credit and Collections, Inc., 2011 WL 6057781 (N.D.Ohio 2011); Wright v. Credit Bureau of Georgia, Inc., 548 F.Supp. 591, 597 (N.D.Ge.1982);Frazier v. Absolute Collection Serv., Inc., 767 F.Supp.2d 1354, 1364 (N.D.Ga.2011); c.f. Beeders v. Gulf Coast Collection Bureau, 796 F.Supp.2d 1335, 1339 (M.D.Fla.2011) (“FDCPA Section 1692d(6) does not prohibit a debt collection agency employee from using an alias during a telephone call, as long as the employee accurately discloses the name of the debt collection agency and explains the nature of its business.”) (emphasis added) (quoting Knoll v. Allied Ins., Inc., 502 F.Supp.2d 943, 946 (D.Minn.2007)). For example, in Savage v. NIC, Inc., 2009 WL 2259726, *3 (D.Ariz. July 28, 2009), a plaintiff sued a debt collector under § 1692d(6) when the debt collector’s employee failed to identify his employer’s name in a voicemail left for the plaintiff. Even though the employee had left his personal name, the court found that “no reasonable jury could find in favor of the Defendant” because the employee had not disclosed the debt collection company’s name. Id. ¶ . . . Lastly, official staff commentary from the Federal Trade Commission regarding § 1692d(6) also supports my conclusion. It provides that, pursuant to § 1692d(6), “[a]n individual debt collector must disclose his employer’s identity, when discussing the debt on the telephone with consumers.” FTC Staff Commentary to FDCPA, Statements of General Policy or Interpretation, § 806(6), ¶ 2, available at http://www.ftc.gov/os/ statutes/fdcpa/commentary .htm# 806. Given that courts have held that leaving a phone message constitutes the placement of telephone call under § 1692d(6), see, e.g., Doshay, supra, and Savage, supra, the FTC’s commentary applies to the situation before me. ¶ For these reasons, I conclude that “meaningful disclosure” under § 1692d(6) requires disclosing the debt collection company’s name.
This decision, and other Foti-progeny justify the need for Congressional clarification. Representative Barney Frank introduced the Fair Debt Collection Practices Clarification Act of 2012 (http://www.govtrack.us/congress/bills/112/hr4101/text). On this point, the Act provides:
SEC. 3. AUTHORITY TO LEAVE MESSAGES FOR A CONSUMER WHILE PROTECTING CONSUMER PRIVACY. Section 805 of the Fair Debt Collection Practices Act (15 U.S.C. 1692c) is amended– (1) by redesignating subsection (d) as subsection (e); and (2) by inserting after subsection (c) the following: ‘(d) Authority To Leave Messages for a Consumer- ‘(1) IN GENERAL- A debt collector may leave messages for a consumer in connection with the collection of a debt on the consumer’s answering machine, voice messaging system, or other similar device, including in an initial communication with the consumer, so long as the message complies with regulations prescribed by the Bureau to ensure the preservation of the privacy and other rights granted to the consumer, including the restrictions on communications with third parties under subsection (b). ‘(2) RULEMAKING- Not later than the end of the 6-month period beginning on the date of the enactment of this subsection, the Bureau shall prescribe regulations to carry out paragraph (1). Such regulations shall– ‘(A) specify the content or text of a permissible message allowed under paragraph (1); ‘(B) provide that a consumer has a right to cease further communication with a debt collector; and ‘(C) include any other such matters as the Bureau determines appropriate to carry out this subsection.’. (3) EFFECTIVE DATE- Paragraph (1) of section 805(d) of the Fair Debt Collection Practices Act shall take effect on the date that regulations are issued pursuant to paragraph (2) of such section 805(d).