Client Alert: Florida Exempts Email from FCCPA Timing Restrictions
In a positive development, particularly for those who rely on electronic communications, Florida has enacted a legislative “fix” designed to allow companies that facilitate or collect customer payments to email their customers at any time of day without regard to the state’s otherwise-applicable debt collection laws.
This fix was implemented by CS/SB 232, which amends the Florida Consumer Collection Practices Act (“FCCPA”) by expressly stating email communications with “debtors” are not subject to the statute's prohibition on communications between 9:00 p.m. and 8:00 a.m. The amendment took effect immediately upon signing and represents a significant clarification for entities that communicate with Florida consumers regarding debt.
Prior to this amendment, the FCCPA contained a blanket prohibition on “communicating with the debtor between the hours of 9 p.m. and 8 a.m. in the debtor's time zone without the prior consent of the debtor.” Courts had previously issued problematic rulings which, taken together, presented unique challenges for compliance with the FCCPA:
The FCCPA in general applies expansively, including to statements, invoices, and pre-delinquency payment reminders.
For purposes of the timing prohibition, an email communication with a debtor does not occur until the message is received or read by the debtor.
As a result of the combined court rulings, those subject to the law previously faced potential liability for emailing billing statements or reminders of already-scheduled payments regardless of when they were sent if the customer read the emails late at night. As such, financial services companies were frequently targeted with class actions and threats of mass arbitration related to FCCPA for routine and otherwise consumer-friendly billing practices.
The amendment reflects the Florida Legislature's recognition that emails are less invasive and less disruptive than telephone calls and were not explicitly contemplated when the original timing restrictions were enacted. However, it is important to note that the amendment is narrowly tailored. While email communications are no longer subject to the 9:00 p.m. to 8:00 a.m. timing restriction, all other FCCPA requirements continue to apply to emails, including prohibitions on harassment and misleading representations. The amendment also only modifies requirements for emails and not other forms of communication subject to the law.
Practical Considerations for Those Involved In the Collection of Payments
For entities doing business in Florida, the FCCPA amendment offers welcome certainty and flexibility with respect to email communications. However, this change does not affect any other aspect of FCCPA compliance, and those subject to the law should ensure their email communications otherwise continue to satisfy all other statutory requirements.
If you want to discuss your servicing and collections practices, please reach out to Chris Napier, Reid Herlihy, or Shelby Schwartz.
Download a PDF of this article HERE.
About the Authors
Chris Napier is a Partner at Mitchell Sandler. His practice focuses on providing regulatory counseling, strategic advice and representation during government enforcement matters, including matters involving commercial, consumer and alternative credit products; money transmission and payments; deposit issues; and partnerships between fintech companies, depository institutions, and lenders.
Reid Herlihy is a nationally recognized lawyer for regulatory compliance, enforcement, and transactional matters, with a particular focus on mortgage servicing and collections. He represents mortgage servicers, lenders, debt collectors, consumer finance companies, financial institutions, investment banks, and secondary-market investors.
Shelby Schwartz is Counsel at Mitchell Sandler. Her practice focuses on financial regulatory and compliance matters, with a concentration on deposit accounts, financial data privacy, and state lending laws. She advises a wide variety of financial services providers, from banks to financial technology companies. Shelby has successfully assisted clients in responding to regulatory inquiries and enforcement matters, including those brought by the Consumer Financial Protection Bureau, the Department of Justice, and various state regulators. She regularly assists clients in assessing their deposit account fee structures and deposit account agreements, analyzing data breach obligations, developing privacy policies, and developing financial products and services within appropriate regulatory models.
SIGN UP FOR UPDATES
Never miss our news, insights or events.
FEATURED NEWS
