TrueAccord is at the forefront of defending litigation related to digital communications in debt collection and its recent victory in the Southern District of Florida is a resounding victory for digital channels in our industry.

In Quinn-Davis v. TrueAccord, the court grappled with the concept of timing in order to figure out when an email is considered inconvenient under both the Federal Debt Collection Practices Act (FDCPA) and the Florida Debt Collection Practices Act (FCCPA). In this case, TrueAccord sent the email at 8:23pm, which is considered a convenient time by both statutes. The plaintiff’s email service provider delivered the email into plaintiff’s inbox at 10:14pm, and the consumer opened the email the following day at 11:44am. The court found no violation of the FDCPA or the FCCPA and granted summary judgment in TrueAccord’s favor.

The FDCPA and FCCPA Prohibitions on Inconvenient Time

To reach its decision, the Court evaluated the inconvenient time provisions of the two statutes. First, the Court analyzed the FDCPA’s provision, breaking it down into three principles:

1. The basic prohibition: A debt collector may not “communicate with a consumer” in connection with any debt collection at (i) any unusual time or place, or (ii) a time or place known or which should be known to be inconvenient to the consumer. 

2. The safe harbor: In the absence of the debt collector’s knowledge of circumstances to the contrary, a debt collector shall assume that communicating with a consumer between 8:00 a.m. and 9:00 p.m. (at the consumer’s location) is convenient (and therefore does not trigger liability). 

3. The prior consent exemption: If the “prior consent of the consumer” is given “directly to the debt collector,” then the debt collector can engage in the activity described in #1 above, regardless of the debt collector’s knowledge or assumptions of the consumer’s communication preferences. 

–See 15 U.S.C. § 1692c(a)(1).

The Court explained that the FCCPA uses similar language to the FDCPA, quoting the statute:

In collecting consumer debts no person shall: … Communicate 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.” Fla. Stat. Ann. § 559.72(17) (emphasis added).

The Court noted that, since this case turned on the interpretation of “communicate with,” it did not have to “parse” the “prior consent” exception language. Applying the facts to these two statutes, the court found no violation of law under either—the first published decision relating to email and inconvenient times.

The Court’s Decision: Email, By Its Silent Nature, Is Never Inconvenient Like Noisy Calls

The decision starts with an eye-catching quote:

“If a tree falls in the forest and no one else is around to hear it, does it make a sound?” This case poses a modern variation of that old chestnut, with a tip-of-the-cap to our elected representatives in Washington, D.C. and Tallahassee…

The court cites its authority under the recent U.S. Supreme Court decision Loper-Bright Enterprises v. Raimondo to reject the CFPB’s interpretation of when an email is considered inconvenient in Regulation F, discussed further below. In its own interpretation, the court found that the consumer opened and read the email at 11:44am, which is a presumably convenient time under both statutes.

The court explicitly stated that it did not take into consideration facts about whether the timing of the email was inconvenient because no evidence was presented on it. However, the court said:

So, what is a prohibited e-mail communication under the FDCPA? When precisely does liability attach? If a debt collector sends an e-mail after 9:00 p.m. and the consumer opens and reads it at 9:00 a.m. the following day, does that violate the FDCPA? What if the debt collector sends an e-mail before 9:00 p.m. but the consumer reads it at midnight? Liable? Clearly, the FDCPA’s safe harbor was aimed at protecting consumers from after-hours noisy telephone rings—not e-mails sitting in one’s e-mail box (silently) overnight. (Emphasis added.)

By this language, the Court suggests that even an email sent after 9:00pm may not be a violation of the inconvenient time prohibition. In this case, the plaintiff opened the email over 13 hours after it was delivered into their inbox, indicating the consumer waited to read it until it was convenient for them.

Ultimately, an email is convenient whenever the consumer opens it because that is when they chose to do so. TrueAccord knows this to be true based on our email communications with millions of consumers. Our own engagement data shows that 25% of consumers engage with emails after 9:00 pm and before 8:00 am. The timing between when an email is sent, delivered, and opened, similar to physical letters, may vary widely from consumer to consumer based on their own choices.

The Court Refused to Follow the CFPB’s Interpretation of the FDCPA

It is important to recognize that in reaching this decision, the Court declined to follow the CFPB’s guidance. In Regulation F, the CFPB spelled out its official interpretation that the time an email is sent, not delivered, is used to determine whether the communication was sent during an inconvenient time. See 12 C.F.R. Part 1006.6(b)(1)(i)(1).

Citing both the Supreme Court Loper decision (and the original, landmark Supreme Court decision in Marbury), the Court stated:

While the CFPB interpretation may have some appeal (on policy grounds), I am neither bound by it nor required to defer to it. See generally Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024) (overruling Chevron USA, Inc. v. Nat’l Res. Defense Council, 467 U.S. 837 (1984)). “It is emphatically the province and duty of the judicial department to say what the law is.” Loper, 144 S.Ct. at 2257 (citing Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60 (1803)).

Based on the plain language of the FDCPA, the Court independently concluded that a debt collector must “actually transmit or transfer information to another person in order to communicate with a consumer.” Notably, in reaching this conclusion, the Court pointed out what all of us already know because we use email every day, stating:

You don’t need to be a Ph.D. in computer science to take judicial notice of the basic nature of e-mail communication. Hundreds of millions of Americans use e-mail all the time.

This decision does not require debt collectors who set up their email policies and practices based on the CFPB’s Regulation F guidance to change their practices. As the Court noted, sending proactive, debt collection emails during the presumptively convenient hours of 8:00am to 9:00pm may be “more protective of consumers in many cases.” Just like sending physical letters, the time when a consumer chooses to read the email is outside of a debt collector’s control and fully within the control of the consumer. If the consumer chooses to read it late at night or 2 days later at noon, that is the consumer’s choice and their preferred time to read that message. Therefore, it remains a best practice for compliance with the plain language of the FDCPA and similar state laws like the FCCPA, to send proactive, debt collection emails during presumptively convenient times.

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Note: This blog post is for informational purposes only and does not constitute legal advice. It does not create an attorney-client relationship. Readers should consult their own counsel for advice regarding their specific situation.