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Today’s topic will be what’s new for 2019? There are many questions as to what will 2019 bring for the Collection industry. We have a new Director of the Consumer Financial Protection Bureau, we have a slew of conflicting federal cases concerning the Telephone Consumer Protection Act and we have significant concerns about the lack of guidance under the FDCPA concerning utilizing modern methods of communication (text, e-mail, etc.)

Hopefully some or all of these issues may be resolved in 2019. Let’s start with the leadership of the CFPB. According to an American Banker report, CFPB Director Kathy Kraninger recently sent an email to CFPB staff that provides a window into what her approach to running the CFPB will be.

The report quotes Ms. Kraninger as having said in the email that the CFPB must do its work “with an open mind and without presumptions of guilt, and to always carefully weigh the costs and benefits to consumers of our enforcement activities and regulatory rulemakings.” She is also reported to have said that on her watch as Director, “the CFPB will vigorously enforce the law,” and that she wants the Bureau “to respect the rights of all we serve and interact with, to safeguard their personal information, and to be transparent in its operations.” In addition, Ms. Kraninger is reported to have stressed the need for the CFPB to make sure that “the marketplace is innovating in ways that enhance both choice and the needs of the consumers.’

This is a hopeful sign for all industries that are under the direct jurisdiction of the CFPB including the debt collection industry. It appears that Ms. Kraninger will be taking the middle road between casting all debt collection agencies as a nemesis to the consumer finance industry as was the practice of former director Richard Cordray and the notion that the CFPB was not necessary which seemed to be the attitude of Richard Mulvaney the acting director of the CFPB after Cordray resigned the post. In other words, Ms. Kraninger seems to believe the CFPB should be a non-partisan, unbiased regulator in the consumer finance space. This will be a refreshing change.

It is worth noting that in her e-mail, she mentions that the CFPB should recognize that the marketplace is innovating. That could portend that there could be an impending change to the FDCPA that would update it to recognize that we now live in a digital age and that debt collection can be done efficiently, in confidence and in full compliance with the FDCPA. We will keep our fingers crossed.

The other area we look for new guidance is in regards to the Telephone Consumer Protection Act (TCPA). As you are aware, the Federal D.C. Court of Appeals struck down key provisions of the FCC’s 2015 Declaratory Ruling and Order interpreting the TCPA. The chairman of the FCC has twice put out requests for comments to the industry and consumers as to how best to define and refine the TCPA so that it provides adequate protections to the consumer without being unduly burdensome to industry participants. At the same time, because there is a split in several of the Federal district courts the U.S. Supreme Court could weigh in on the matter as well. On Nov. 13, 2018, the U.S. Supreme Court granted certiorari in Carlton & Harris Chiropractic, Inc. v. PDR Network, LLC. The Supreme Court will review whether the Hobbs Act requires district courts to accept the Federal Communication Commission’s (FCC) legal interpretations of the TCPA. This ruling could bring some amount of order to the amount of judicial notice that federal courts afford to the FCC’s TCPA rules in civil litigation.

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