District Court (Cal.) Says E-mail of FDCPA’s Validation Notice is Not Prohibited by E-Sign

In Greene v. TrueAccord, Case 3:19-cv-06651-EMC (N.D. Cal. 2020), here, Judge Chen dismissed an FDCPA case premised on the Plaintiff’s claim that the defendant could not e-mail the FDCPA’s validation notice.

Ms. Greene contends that TA violated the FDCPA by sending her the validation notice by email – as part of the initial communication – without complying first with the E-SIGN Act. . . .TA argues, however, that the statute does not put any restrictions on how a validation notice may be conveyed when it is part of the initial communication. TA is correct that the statute on its face does not impose any express restrictions when a validation notice is a part of the initial communication. Indeed, the FDCPA actually indicates that an initial communication may be made orally, not just in writing – which has led several courts to hold that a validation notice accompanying an oral initial communication may also be provided orally; it need not be in writing or compliant with the E-SIGN Act.. . .If there are no express restrictions as to how an initial communication can be made – and an oral initial communication is explicitly recognized – then it is a reasonable argument that an initial communication can also be made electronically. This is especially so since the statutory language contains no express limitation on the mode of the initial communication. Admittedly, as the Consumer Financial Protection Bureau (“CFPB”) has recognized, some “communication technologies . . . did not exist at the time the FDCPA was passed (such as mobile telephones, email, and text messaging).” 84 Fed. Reg. 23274, 23274 (May 21, 2019). But the statutory language is open ended, and the fact that newer communication technologies have developed and yet Congress, for whatever reason, has not chosen to amend the FDCPA to account for these newer technologies, if anything, bolsters TA’s position.1 Cf. Booth v. United States, 914 F.3d 1199, 1205 (9th Cir. 2019) (noting that “Congress, if so minded, may establish exceptions [to the statute of limitations] for certain disabilities – including minority – and has done so in various federal statutes,” but “each time Congress amended the limitation period [for the FTCA], it did not add a tolling provision”; “proposed amendments providing for minority tolling of the FTCA’s statute of limitations . . . have not become law” and, “[h]ad Congress wanted to include minority tolling in the FTCA’s statute of limitations, it could have done so”); Maurice Sporting Goods v. Maxway Corp. (In re Maxway Corp.), 27 F.3d 980, 985 n.3 (4th Cir. 1994) (noting that, “[i]f Congress had intended a contrary interpretation of § 546(a)(1), it could have amended § 546(a)(1) to overrule these cases – particularly in 1986, when it amended § 546(a)(1)”; acknowledging that reliance on congressional silence or inaction” is “modest evidence of what Congress intended [but] these episodes of silence or inaction constitute the only available evidence of congressional intent”). This is true even though the FDCPA expressly provides that communications can be made by “through any medium.” 15 U.S.C. § 1692a(2) (defining “communication” as a “means the conveying of information regarding a debt directly or indirectly to any person through any medium”). In fact, in May 2019, the CFPB indicated its understanding that that, under the FDCPA as currently written, an initial communication can be made not only orally but also electronically. . . In commentary, the CFPB noted that a validation notice as part of an initial communication can be conveyed via email. The E-SIGN Act’s consumer consent provisions apply if a statute, regulation, or other rule of law requires that information relating to a transaction or transactions in or affecting interstate or foreign commerce be provided or made available to a consumer in writing. As discussed in the section-by-section analysis of proposed 1006.34(a)(1), neither FDCPA section 809(a) [i.e., 15 U.S.C. § 1692g(a)] nor proposed Regulation F prohibit a debt collector from providing the validation information described in proposed § 1006.34(c) orally or electronically in the debt collector’s initial communication with the consumer. Accordingly, the E-SIGN Act’s consumer consent provisions do not apply to the extent a debt collector provides the validation information in the body of an email that is the debt collector’s initial communication with the consumer. However, proposed § 1006.42(a)(1) would apply. 84 Fed. Reg. at 23366 (emphasis added). Although CFPB’s interpretation of § 1692g(a) is not entitled to Chevron level of deference because the regulation has not become final, it is reasonable and persuasive and entitled to consideration. See Somers v. Digital Realty Trust, Inc., No. C-14-5180 EMC, 2015 U.S. Dist. LEXIS 64178, at *15-16 (N.D. Cal. May 15, 2015) (noting that, under the Chevron framework, if Congress has not directly spoken to the precise question at issue, and the statute is silent or ambiguous with respect to the specific issue, a court must determine whether the agency’s interpretation is based on a permissible construction of the statute; “[i]f the agency’s interpretation of the statute ‘is a reasonable one, this court may not substitute its own construction of the statutory provision’ even if the Court believes the provision would best be read differently”).