[Federal Register Volume 76, Number 50 (Tuesday, March 15, 2011)]
[Notices]
[Pages 14010-14014]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-6002]


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FEDERAL TRADE COMMISSION


Public Workshop: Debt Collection 2.0: Protecting Consumers as 
Technologies Change

AGENCY: Federal Trade Commission (``FTC'' or the ``Commission'').

ACTION: Public Workshop and Request for Public Comments and 
Participation.

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SUMMARY: The FTC announces that it will hold a public workshop on April 
28, 2011, to address consumer protection issues that have arisen as 
debt collectors avail themselves of advances in technology. The 
workshop will explore developments in technology that debt collectors 
use to gather, store, and manage information about consumers; to comply 
with the law; to communicate with consumers; and to receive payment. 
The workshop will provide an opportunity for government regulators, 
industry members, technologists, consumer advocates, and researchers, 
to discuss the costs and benefits of these technologies for debt 
collectors and consumers. It will also address whether and how 
collectors may use such technologies consistent with applicable laws, 
including the Fair Debt Collection Practices Act and Section 5 of the 
FTC Act, what consumer protection concerns arise from use of these 
technologies, and what actions, if any, the Commission and other 
policymakers should take to respond to those concerns. This notice 
poses a series of questions on which the Commission seeks comment.
    The event is open to the public, and there is no fee for 
attendance. For admittance to the workshop, all attendees will be 
required to show a valid form of government-issued photo 
identification, such as a driver's license. Additional information 
about the workshop will be posted on the FTC's Web site at: http://www.ftc.gov/bcp/workshops/debtcollectiontech/index.shtml.
    Date and Location: The workshop will be held on April 28, 2011, 
from 8:30 a.m. to 5:30 p.m., at the Federal Trade Commission's 
Satellite Building Conference Center, located at 601 New Jersey Avenue, 
NW., Washington, DC.
    Workshop Agenda: Additional information, including an agenda and 
panelist biographies, will be posted on the FTC's Web site at http://www.ftc.gov/bcp/workshops/debtcollectiontech/index.shtml.
    Public Comments: Interested parties are invited to submit written 
comments electronically or in paper form, by following the instructions 
in the Instructions For Filing Comments part of the SUPPLEMENTARY 
INFORMATION section below. Comments filed in electronic form should be 
submitted by using the following Web link: https://ftcpublic.commentworks.com/ftc/debtcollecttechworkshop, and following 
the instructions on the Web-based form. Comments in paper form should 
be mailed or delivered to the following address: Federal Trade 
Commission, Office of the Secretary, Room H-113 (Annex F), 600 
Pennsylvania Avenue, NW., Washington, DC 20580, in the manner detailed 
in the SUPPLEMENTARY INFORMATION section below. To be considered in 
preparation for the workshop, comments must be received by Thursday, 
April 7, 2011. However, comments will be accepted through Friday, May 
27, 2011.
    Requests to Participate as Workshop Panelists: FTC staff will 
identify and invite individuals with relevant expertise to participate 
as panelists. In addition, the FTC staff may invite other persons to 
participate as panelists who submit requests in response to this 
Federal Register notice. Requests to participate as panelists in the 
workshop must be received on or before 5 p.m. EST, Tuesday, March 22, 
2011. Persons filing requests to participate as panelists will be 
notified whether they have been selected on or before Wednesday, March 
31, 2011. For further instructions, please see the ``Requests to 
Participate as Workshop Panelists'' section under SUPPLEMENTARY 
INFORMATION below.

FOR FURTHER INFORMATION CONTACT: Leah Frazier, (202) 326-3224, 
<a href="/cdn-cgi/l/email-protection#3b5f584f5e58537b5d4f58155c544d"><span class="__cf_email__" data-cfemail="94f0f7e0f1f7fcd4f2e0f7baf3fbe2">[email protected]</span></a>, Division of Financial Practices, Federal Trade 
Commission, 600 Pennsylvania Avenue, NW., Mail Stop NJ-3158, 
Washington, DC 20580.

SUPPLEMENTARY INFORMATION: When the Fair Debt Collection Practices Act

[[Page 14011]]

(``FDCPA''), 15 U.S.C. 1692-1692p, was enacted in 1977, debt collectors 
contacted consumers to collect debts primarily through mail and 
landline telephone, reflecting the means of communication then 
available. Technological advances have expanded the tools available to 
debt collection companies as they attempt to locate consumers, monitor 
their employees' practices, communicate with consumers, and receive 
payment on debts. The Commission examined these developments as part of 
a broad review of the evolution of the debt collection industry at a 
public workshop held in 2007. Using data gleaned from the workshop, 
public comments, and the FTC's law enforcement experience, the 
Commission issued a report in 2009, Collecting Consumer Debts: The 
Challenges of Change--A Workshop Report.\1\ The Report recognized that 
the legal framework for consumer debt collection had not been updated 
to account for many technological advances, and that, in some 
instances, the Commission lacked data on the use of new technologies in 
the debt collection system.\2\
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    \1\ Federal Trade Commission, Collecting Consumer Debts: The 
Challenges of Change--A Workshop Report (Feb. 2009), available at 
http://www.ftc.gov/bcp/workshops/debtcollection/dcwr.pdf 
(hereinafter ``Report'').
    \2\ Id. at 38 (lack of data on frequency of debt collection 
calls resulting in ``hang-ups'' or ``dead air'' calls). The 
Commission requested that interested parties submit information on 
the use of certain technologies in debt collection. Id. at 42 
(mobile phones); id. at 45 (caller ID); id. at 49 (voice-mail); id. 
at 50-51 (e-mail and instant messaging).
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    Further exploration of the impact of evolving technology on 
consumer debt collection is warranted not only in light of questions 
raised by the 2007 workshop and ensuing Report, but also due to 
developments that have occurred since then, such as the increasing 
popularity of social media networking sites.\3\ Facebook, which did not 
become available to the general public until 2006, now has 
approximately 150 million users in the United States,\4\ and some debt 
collectors are using it to find and contact debtors.\5\ The technology 
that debt collectors use to obtain, store, and manage information about 
consumers also continues to evolve.\6\ In addition, collectors may be 
using older technologies in new ways. For example, although electronic 
mail (``e-mail'') is not a new technology, its use by debt collectors 
to contact consumers has increased, giving rise to questions about its 
treatment under the current regulatory scheme.\7\ Similarly, the use of 
electronic payments continues to rise.\8\ Debt collectors, like many 
retailers, have begun to accept payment from consumers 
electronically.\9\ These trends call for a discussion of the relative 
costs and benefits to consumers and the debt collection industry of 
these technologies and correspondingly, whether there is a need for 
action, including changes in law, policy, or industry practice.
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    \3\ Social media refers to Internet Web sites that enable people 
to network, communicate, or share information. Examples of social 
media sites include Facebook, MySpace, Twitter, and LinkedIn.
    \4\ See Facebook, Statistics, http://www.facebook.com/press/info.php?statistics (last visited Jan. 25, 2011).
    \5\ See, e.g., Alexis Madrigal, Facebook Warns Debt Collectors 
About Using Its Service, The Atlantic (Nov. 19, 2010), available at 
http://www.theatlantic.com/technology/archive/2010/11/facebook-warns-debt-collectors-about-using-its-service/66831/#.
    \6\ See, e.g., Press Release, Collections & Credit Risks, 
Convoke Systems Adopted By Debt Buyers (Jan. 20, 2011), available at 
http://www.collectionscreditrisk.com/news/news-release-convoke-systems-adopted-by-debt-buyers-3004747-1.html; Global Debt Registry 
Recognized As Visa PCI DSS Validated Service Provider, Business Wire 
(Jan. 31, 2011), available at http://www.businesswire.com/news/home/20110131006698/en/Global-Debt-Registry-Recognized-Visa-PCI-DSS.
    \7\ Letter from FTC Secretary Donald S. Clark to Barbara A. 
Sinsley & Manny H. Newburger, counsel for Vion Holdings LLC.
    \8\ Federal Reserve System, The 2010 Federal Reserve Payments 
Study: Noncash Payment Trends in the United States: 2006-2009 (Dec. 
8, 2010), at 13 (``The number of electronic payments grew 9.3 
percent per year from 2006 to 2009. The proportion of electronic 
payments to overall noncash payments increased from 67.9 percent to 
77.6 percent over the same period. The value of electronic payments 
increased 6.0 percent per year, growing from 45.1 percent of noncash 
payments in 2006 to 56.3 percent in 2009.''), available at http://www.frbservices.org/files/communications/pdf/press/2010_payments_study.pdf.
    \9\ Report, supra note 1, at 20.
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    As discussed below, advances in technology can affect the entire 
debt collection life cycle, from locating consumers and communicating 
with them to receiving payment.

Information Technologies

    Advances in technology may assist debt collectors in managing the 
flow of information about consumers and improving its accuracy. The 
Internet, through public search engines and proprietary commercial 
platforms, allows access to large quantities of information about 
consumers in a consolidated and searchable format.\10\ Web-based social 
media channels also contribute to the available pool of data, as they 
allow consumers to post information about themselves online, including 
the identities of friends and family members, whom collectors could 
approach for certain information. Further, a variety of database 
platforms now exist that purport to aid debt collectors in maintaining 
and updating information about consumers.\11\ All of these technologies 
may enhance collectors' ability to locate or skip-trace consumers and 
verify the accuracy of their information. At the same time, however, 
the collection and retention of what may be sensitive personally 
identifiable information may raise privacy concerns for consumers.
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    \10\ Report, supra note 1, at 18-19.
    \11\ Report, supra note 1, at 17-20.
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    Developments in technology may also aid collection companies in 
complying with the law by enabling them to better monitor and constrain 
their individual collectors as they communicate with consumers. For 
example, certain software may allow companies to track both volume 
level during calls and the words used and to record calls so that 
companies can monitor for verbal abuse.\12\ Other software programs 
might be used to limit the number of calls per day placed to a 
telephone number, exclude placing calls to a telephone number before 8 
a.m. or after 9 p.m. in the relevant area code, or otherwise limit how 
frequently a collector dials a particular number.\13\
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    \12\ See, e.g., Anne Rosso, Technology Tug O= War, Collector, 
Dec. 2010, at 20.
    \13\ See John H. Bedard Jr., Dialer Control, Collector, Feb. 
2010, at 32.
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Communication Technologies

    Post-FDCPA advances in communication technologies are of particular 
import, since the existing legal framework focuses heavily on 
communications between consumers and debt collectors.\14\ Technology 
has expanded debt collectors' capacity to access consumers. Collectors 
may use automatic or predictive dialers and recorded voice technology 
to contact people more efficiently. Mobile phones now abound. Indeed, 
many households have given up land line phones in favor of mobile 
phones, enabling consumers to receive calls regardless of their 
location.\15\ Additionally, means of communication exist today beyond 
the simple voice and written communications contemplated by the FDCPA. 
For instance, collectors sometimes send text messages using the Short 
Messaging System. In addition, at times debt collectors use the 
Internet to interact with consumers. Internet communications include 
sending e-mails and instant messages as well as interacting on social 
networking sites. While these communication

[[Page 14012]]

technologies may provide benefits, they raise potential consumer 
protection concerns as well, including the security of electronic 
communications, whether such communications satisfy the FDCPA's written 
notice requirements, and how they implicate the FDCPA's prohibition 
against contacting consumers at inconvenient times or places.\16\
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    \14\ See, e.g., FDCPA Sec.  805(a)(1), 15 U.S.C. 1692c(a)(1) 
(time and place restrictions on telephone calls from debt collectors 
communications); FDCPA Sec. Sec.  805(c), 809(b) (written notice 
requirements).
    \15\ Report, supra note 1, at 16 (By June 2008, 16% of consumers 
had replaced their landline telephones with mobile phones.).
    \16\ FDCPA Sec.  809(a) (written validation notice from 
collector to consumer); FDCPA Sec. Sec.  805(c) & 809(b) (written 
notices from consumer to collector); FDCPA Sec.  805(a)(1) 
(convenience restrictions).
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Payment Technologies

    Debt collectors, like many retailers, offer payment options to 
consumers other than cash or check, such as credit, debit, and stored 
value cards and automated clearinghouse transactions (``ACH'').\17\ As 
discussed in the Report, these technologies can benefit consumers and 
debt collectors alike by streamlining the payment process and, in some 
cases, allowing consumers to engage in online negotiations with 
collectors.\18\ The Report, however, also identified the potential for 
unauthorized debits as a significant consumer protection concern 
arising from the use of electronic payment technologies.\19\
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    \17\ Report, supra note 1, at 20.
    \18\ Report, supra note 1, at 20.
    \19\ Report, supra note 1, at 51-55.
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The Workshop

    The workshop will focus on post-FDCPA advancements in information, 
communication, and payment technologies. Workshop panelists will 
discuss, among other things, the effects that these technologies have 
had on the debt collection industry, the prevalence of their use, best 
practices for their use, what consumer protection concerns they raise, 
and what responses those concerns may warrant.
    The Commission seeks public comment and data submission on the 
topics and questions set forth below or any issue raised by this 
notice. Comments or data submissions may address the issues raised in 
these questions or other issues relevant to the topics to be addressed 
at the workshop. Any interested person may submit written comments. In 
preparing for the workshop, the Commission will consider comments 
received by April 7, 2011. Later comments will be accepted as well 
through May 27, 2011.
    Topics for comment and discussion include:
    1. What technologies have come into existence since the enactment 
of the FDCPA that have significantly affected consumer debt collection, 
or are likely to do so in the future? What are the nature and magnitude 
of these effects?

Information Technologies

    2. Have any advances in technology been made that could increase 
the likelihood that collectors will contact the correct consumer 
regarding the correct debt amount? What are the costs and benefits of 
using any such technology to consumers and the industry? How commonly 
is such technology being used? Does its use vary by size or type of 
debt collector? If its use is not widespread, why is that the case? 
What role, if any, should the Commission or other policymakers play in 
fostering the use of such technology?
    3. Have technological advances changed how and where debt 
collectors obtain information about consumers and debt? How have 
technological advances affected the efficacy of skip-tracing and 
recovery rates? What are the recent innovations in skip-tracing 
applications? What are the sources of the data they access about 
consumers?
    4. What technologies do collectors use to maintain information 
regarding consumers and debts (e.g., how do collectors record consumer 
disputes)? How do technological advances affect collectors' ability to 
ensure both that inaccurate information is removed from collectors' 
databases and that information indicating that a consumer should not be 
contacted is reflected in collectors' databases? To what extent is 
information overwritten by collectors in using or transferring to 
others the contents of databases, and what problems can this cause?
    5. Do new information technologies create greater or different 
privacy or data security risks in the context of debt collection than 
traditional communication technologies? If so, what are the risks of 
such technologies, and how are the risks different? What, if anything, 
should collectors be required to do to prevent or mitigate these risks? 
What do debt collectors do to keep information on consumers and debts 
secure? How frequently do data breaches occur? What sorts of breaches 
occur?
    6. What technologies do creditors, debt buyers, and debt collectors 
use in transferring information among themselves about alleged debtors 
and debts? What information is transferred, and when and how is it 
transferred? How has technology affected the availability of media 
evidencing debt and the ability to store and transfer that material? To 
what extent are there problems with systems being unable to interact 
with each other?
    7. What is the prevalence and feasibility of outsourcing the 
transfer (and storage) of information to third-party firms that act as 
repositories of information on consumer debts? What are the potential 
costs and benefits to consumers, collectors, and creditors of such 
repositories? What role should creditors play with respect to these 
repositories? Should the Commission or other policymakers mandate or 
encourage the use or creation of such repositories?
    8. To what extent do advances in technology affect the process of 
selling debts, the ease and speed of selling debts, and the quantity 
and nature of the information conveyed when debts are sold? Are debt 
sales negotiated or closed using social media sites or Internet 
marketplaces? What is the significance, if any, of whether debts are 
bought or sold via social media or the Internet? What would be the 
costs and benefits to consumers of buying or selling debts through 
these media?
    9. How do current federal and state laws apply to debt collectors' 
use of post-FDCPA information technologies? How, if at all, should the 
law be changed to take into account the costs and benefits of these 
technologies to consumers and collectors?

Communication Technologies

    10. What are the costs and benefits to collectors and consumers of 
using various methods to communicate with consumers? Are the costs and 
benefits different for traditional communication technologies (e.g., 
letters and landline telephone calls) compared with new communication 
technologies (e.g., social networking sites, e-mail, text messages, 
etc.)?
    11. Should debt collectors be required to obtain consumer consent 
to use particular methods of communication to contact consumers? If so, 
which communication methods and why? Should it depend on whether the 
consumer provided the creditor or collector with the necessary contact 
information? If consent should be required, what, if anything, should 
collectors be required to do to obtain such consent? How likely are 
consumers to provide such consent?
    12. Do new communication technologies create any greater or 
different privacy or data security risks in the context of debt 
collection than traditional communication technologies? If so, which 
communication methods create greater or different risks? What are the 
risks of such methods, and how are the risks different? What, if 
anything, should

[[Page 14013]]

collectors be required to do to prevent or mitigate these risks?
    13. Do new communication technologies in the context of debt 
collection create different risks of deception, unfairness, or abuse, 
compared to those associated with traditional technologies? If so, 
which technologies, and why?
    14. What proportion of debt collectors' communications to consumers 
proceed by various modalities (e.g., letters, e-mail messages, calls to 
mobile phones, use of artificial or prerecorded voices, etc.)? Are 
there variations by size of collection firm or type of debt subject to 
collection? If so, what are the variations?
    15. How do current Federal and State laws apply to debt collectors' 
and consumers' use of post-FDCPA communication technologies? How, if at 
all, should the law be changed to take into account the costs and 
benefits of these technologies to collectors and consumers?

Payment Technologies

    16. What proportion of consumer payments to debt collectors proceed 
by various payment methods (e.g., paper checks, ACH debits, or online 
credit card payment portals)? Are there variations by size of 
collection firm or type of debt subject to collection? If so, how?
    17. What are the costs and benefits to collectors and consumers of 
accepting consumer payments using electronic payment technologies 
(e.g., direct ACH debits, electronic checks, online payment portals) as 
compared to traditional payment technologies (e.g., paper checks, 
credit card payments)?
    18. Does debt collector use of electronic payment technologies 
create any greater or different privacy or data security risks in the 
context of debt collection than in the general retail industry? If so, 
which payment technologies create greater or different risks? What are 
the risks of such methods, and how are the risks different? What, if 
anything, should collectors be required to do to prevent or mitigate 
these risks?
    19. Do electronic payment technologies in the context of debt 
collection create different risks of deception, unfairness, or abuse, 
compared to those associated with traditional technologies? If so, 
which technologies, and why?
    20. How, if at all, should collectors be required to obtain and 
document consumer consent to making a payment using various payment 
technologies? Should requirements for collectors differ from 
requirements for general retailers?
    21. How do current federal and state laws apply to debt collectors' 
use of post-FDCPA payment technologies? How, if at all, should the law 
be changed to take into account the costs and benefits of these 
technologies to consumers and collectors?

Instructions for Filing Comments

    Interested parties are invited to submit written comments 
electronically or in paper form. Comments should refer to ``Debt 
Collection 2.0, Project No. P114802'' to facilitate the organization of 
comments. Please note that your comment--including your name and your 
state--will be placed on the public record of this proceeding, 
including on the publicly accessible FTC Web site, http://www.ftc.gov/os/publiccomments.shtm. To be considered in preparation for the 
workshop, comments must be received by April 7, 2011, although the 
Commission will accept comments until May 27, 2011.
    Because comments will be made public, they should not include any 
sensitive personal information, such as any individual's Social 
Security Number; date of birth; driver's license number or other state 
identification number, or foreign country equivalent; passport number; 
financial account number; or credit or debit card number. Comments also 
should not include any sensitive health information, such as medical 
records or other individually identifiable health information. In 
addition, comments should not include any ``[t]rade secret or any 
commercial or financial information which is obtained from any person 
and which is privileged or confidential * * *, '' as provided in 
Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 
16 CFR 4.10(a)(2). Comments containing material for which confidential 
treatment is requested must be filed in paper form, must be clearly 
labeled ``Confidential,'' and must comply with FTC Rule 4.9(c), 16 CFR 
4.9(c).\20\
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    \20\ The comment must be accompanied by an explicit request for 
confidential treatment, including the factual and legal basis for 
the request, and must identify the specific portions of the comment 
to be withheld from the public record. The request will be granted 
or denied by the Commission's General Counsel, consistent with 
applicable law and the public interest. See FTC Rule 4.9(c), 16 CFR 
4.9(c).
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    Because paper mail addressed to the FTC is subject to delay due to 
heightened security screening, please consider submitting your comments 
in electronic form. Comments filed in electronic form should be 
submitted using the following Web link: https://ftcpublic.commentworks.com/ftc/debtcollecttechworkshop (and following 
the instructions on the Web-based form). If this document appears at 
http://www.regulations.gov/#!home, you may also file an electronic 
comment through that Web site. The Commission will consider all timely 
comments that regulations.gov forwards to it. You may also visit the 
FTC Web site at http://www.ftc.gov to read this notice and the related 
news release.
    A comment filed in paper form should include the ``Debt Collection 
2.0, Project No. P114802'' reference both in the text and on the 
envelope, and should be mailed or delivered to the following address: 
Federal Trade Commission, Office of the Secretary, Room H-113 (Annex 
F), 600 Pennsylvania Avenue, NW., Washington, DC 20580. The FTC is 
requesting that any comment filed in paper form be sent by courier or 
overnight service, if possible, because U.S. postal mail in the 
Washington area and at the Commission is subject to delay due to 
heightened security precautions.
    The FTC Act and other laws the Commission administers permit the 
collection of public comments to consider and use in this proceeding as 
appropriate. The Commission will consider all timely and responsive 
public comments that it receives, whether filed in paper or electronic 
form. Comments received will be available to the public on the FTC Web 
site, to the extent practicable, at http://www.ftc.gov/os/publiccomments.shtm. As a matter of discretion, the Commission makes 
every effort to remove home contact information for individuals from 
the public comments it receives before placing those comments on the 
FTC Web site. More information, including routine uses permitted by the 
Privacy Act, may be found in the FTC's privacy policy at http://www.ftc.gov/ftc/privacy.shtm.

Requests To Participate as Workshop Panelists

    The FTC staff will identify and invite individuals with relevant 
expertise to participate as panelists. In addition, the FTC staff may 
invite other persons to participate as panelists who submit requests in 
response to this Federal Register notice.
    Requests to participate as workshop panelists must be received in 
writing by 5 p.m. EST on Tuesday, March 22, 2011, and should refer to 
``Debt Collection 2.0--Panelist Participation Request.'' Such requests 
(except requests containing any confidential material)

[[Page 14014]]

should be submitted in electronic form to <a href="/cdn-cgi/l/email-protection#01656275646269416775622f666e77"><span class="__cf_email__" data-cfemail="fe9a9d8a9b9d96be988a9dd0999188">[email protected]</span></a> and should be 
captioned: ADebt Collection 2.0--Panelist Participation Request.'' If 
the request to participate contains any material for which confidential 
treatment is requested, it must be filed in paper (rather than 
electronic) form, and the first page of the document must be clearly 
labeled ``Confidential.'' Please include an original and two copies of 
each document submitted in paper form. Requests submitted in paper form 
should include this reference both in the text and on the envelope, and 
should be sent by overnight delivery or courier to the following 
address: Debt Collection 2.0, c/o Leah Frazier, Federal Trade 
Commission, 600 Pennsylvania Avenue, NW., Mail Stop 3158, Washington, 
DC 20580.
    Requests to participate as workshop panelists should include the 
following information:
    (1) A brief biographical description, r[eacute]sum[eacute], or 
curriculum vitae, including name and affiliation;
    (2) A statement setting forth the potential panelist's expertise in 
or knowledge of one or more issues likely to be addressed by the 
workshop;
    (3) A list of the topic(s) that the potential panelist would like 
to address, and a one-paragraph summary of the potential panelist's 
unique perspective or knowledge of each such topic; and
    (4) Contact information, including a daytime telephone number, 
facsimile number, and e-mail address (if available).
    Parties filing requests to participate as workshop panelists will 
be notified whether they have been selected on or before Thursday, 
March 31, 2011.
    The FTC Act and other laws the Commission administers permit the 
collection of requests to participate as workshop panelists to consider 
and use in this proceeding as appropriate. More information, including 
routine uses permitted by the Privacy Act, may be found in the FTC's 
privacy policy at http://www.ftc.gov/ftc/privacy/htm.

    By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 2011-6002 Filed 3-14-11; 8:45 am]
BILLING CODE 6750-01-P


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