In Peak v. Professional Credit Service, 2015 WL 7862774, at *5-6 (D.Or., 2015), Judge Aiken granted summary judgment to a debt collector who was sued by a debtor for a collection v/m to which the debtor allowed access to a third party.
Finally, defendant contends the voicemail messages were not communications “with” third parties because it had no reason to suspect anyone else would listen to the messages. In other cases, debt collectors have argued consumers must show intent to communicate with a third party, or at least knowledge a third party would receive the communication, to state a violation of section 1692c(b). Courts have uniformly rejected those arguments, holding the FDCPA is a strict liability statute. . . . Here, defendant is not arguing for an intent requirement. Instead, it asserts a negligence standard should apply: 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. . .No matter how careful a debt collector is, there is always some risk a third party will intercept the communication. An identity thief might open mail addressed to a consumer and sent to the consumer’s home, even if that mail is marked “confidential.” A family member might quietly pick up the phone and listen to a seemingly private conversation. Congress intended the FDCPA to cause debt collectors 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 and force debt collectors to file a lawsuit in order to recover the amount owed. Moreover, as defendant’s counsel pointed out at oral argument, a true strict liability standard would invite abuse: upon answering a phone call from a debt collector in a crowded restaurant, the recipient could expose the collector to liability for a hundred unauthorized communications with third parties simply by placing the call on speakerphone. 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. Federal Trade Commission (“FTC”) commentary on the FDCPA also supports a reasonable foreseeability standard. The commentary recommends holding debt collectors liable for sending a written message that is “easily accessible to third parties,” but shielding them from liability if an “eavesdropper overhears a conversation with the consumer, unless the debt collector has reason to anticipate the conversation will be overheard.” Federal Trade Commission, Statements of General Policy or Interpretation Staff Commentary on the Fair Debt Collection Practices Act, 53 Fed. Reg. 50097, 50104 (Dec. 13, 1988). Although not binding on courts, FTC interpretations of the FDCPA are entitled to “considerable weight.” Hawthorne v. Mac Adjustment, 140 F.3d 1367, 1372 n.2 (11th Cir. 1998). I conclude a communication is “with” a third party under 15 U.S.C. § 1692c(b) if it was reasonably foreseeable the third party would receive the communication. Applying that standard, I find it was not reasonably foreseeable the phone messages here would be overheard by Mr. Lyons, Ms. Turner, or any other third party. Three undisputed facts support this conclusion. First, defendant called plaintiff’s personal cell phone, not a land line. Defendant knew the call was to a cell phone because plaintiff was driving when she answered the phone the day before the first message was left. 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. See Marisco, 946 F. Supp. 2d at 295-96 (“[I] t is well known that, unlike a voicemail message, a message left on an answering machine can be easily heard within a certain distance”) . Second, plaintiff’s outgoing message identified her, and only her, as the owner of the phone. It is reasonably foreseeable a third party will listen to a message if the outgoing message clearly states the number is a shared line. See Branco v. Credit Collection Servs. Inc., No. CIV. S-10-1242 FCD/EFB, 2011 WL 3684503 at *1, *5 (plaintiff entitled to summary judgment on third-party communication claim when outgoing message stated “You have reached the Branco residence” and directed callers to “leave a message and phone number so that Steve, Sari or Travis may return your call”). The same cannot be said of an outgoing message requesting callers to leave a message for only “Kat.” Finally, defendant asked plaintiff if the cell phone number was the “best” one at which to reach her the day before the first message was left. Even though plaintiff was sharing the phone and access to voicemail with Mr. Lyons, plaintiff affirmed the number was the “best” contact option without instructing defendant not to leave any messages. Standing alone, none of these facts would be sufficient to entitle defendant to summary judgment. As explained above, the situation would be different if the outgoing message on a landline answering machine identified one person as the owner of the line. It would also be different if the outgoing message on a cell phone invited the caller to leave a message for more than one person. Taken together, though, these facts establish it was reasonable for defendant to believe it was leaving a message that would be heard only by plaintiff. The messages thus were not communications “with” third parties under section 1692c (b), and defendant is entitled to summary judgment on the first claim for relief.