Does Emailing a Debtor Between 9pm and 8am Violate the FCCPA?

The Florida Consumer Collection Practices Act (FCCPA) is a pro-consumer statute. As such, businesses need to be aware of the statute and the risk and liability of the statute. We have recently seen a trend in filing lawsuits against businesses for allegedly violating Section 559.72(17) relating to emails for collecting debt. This article seeks to explore whether sending an email to a debtor after 9pm and before 8am violates the FCCPA.

Section 559.72(17), Florida Statutes

Section 559.72 provides for 19 separate prohibited practices. Section 559.72(17) prohibits contacting a debtor between the hours of 9pm and 8am. Section 559.72(17) reads in its entirety as follows:

559.72 Prohibited practices generally.—In collecting consumer debts, no person shall:

. . .

(17) 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.

(a) The person may presume that the time a telephone call is received conforms to the local time zone assigned to the area code of the number called, unless the person reasonably believes that the debtor’s telephone is located in a different time zone.

(b) If, such as with toll-free numbers, an area code is not assigned to a specific geographic area, the person may presume that the time a telephone call is received conforms to the local time zone of the debtor’s last known place of residence, unless the person reasonably believes that the debtor’s telephone is located in a different time zone.

Does Section 559.72(17) Apply to Emails?

Unfortunately, the case law regarding Section 559.72(17) is scant. As such, this allows consumer lawyers to make the argument that Section 559.72(17) should apply to emails. I disagree for the following reasons.

The statute on its face contemplates a violation by telephone call. In interpreting Section 559.72(17), the entire section must be construed together. As such, you cannot simply read the first sentence of Section 559.72(17), without also reading Section 559.72(17) (a) and (b). Section 559.72(17) (a) and (b) refer to phone calls and do not refer to emails. One principle of statutory construction that applies here is expressio unius est exclusio alterius, which is a Latin term meaning “the expression of one thing is the exclusion of the other.” This principle of statutory construction should apply to Section 559.72(17), Florida Statutes. By including a reference to “telephone call” in Section 559.72(17), the Florida Legislature intended to exclude communications via email.

Additionally, Section 559.72(17) uses the term “communicate with” and not “communicate to.” Applying the language used in the statute, it must be determined when the communication occurred. I would argue that with email, the communication does not occur until the email is opened or read. Thus, the burden would be on the debtor to prove that the email was opened or read after 9pm and before 8am. Otherwise, the business has not even communicated with the debtor during the prohibited time period.

Sending an Email to a Debtor After 9pm and Before 8am Should Not Violate the FCCPA

Arguing a violation of Section 559.72(17) based upon email communications appears to be a relatively new argument since there is limited case law interpreting Section 559.72(17). As such, there are arguments to be made challenging whether sending an email violates this Section of the FCCPA.

Based purely on the plain language of Section 559.72(17), it does not appear that the Legislature intended Section 559.72(17) to apply to emails. Had the Legislature intended for Section 559.72(17) to apply to emails, the Legislature could have included emails in Section 559.72(17). Alternatively, the Legislature could have excluded the reference to telephone calls or could have used other language indicating that when the violation involves telephone calls, Section 559.72(17)(a) and (b) apply. By not doing so, it appears that the Legislature intended Section 559.72(17) to only apply to telephone calls.

Conclusion

FCCPA litigation is a constantly evolving area of law. Given the pro-consumer nature of the statute, consumer lawyers are starting to argue that email communications after 9pm and before 8am violate the FCCPA. However, based upon the plain language of the statute, it does not appear that Section 559.72(17) applies to email communications. Nevertheless, businesses need to be aware of this argument. Until this argument has been conclusively decided by Florida courts, it would be prudent for businesses to revisit their collections practices and not send emails to collect consumer debt after 9pm and before 8am. As this area of the law develops, it will be interesting to see how courts rule on this argument and whether courts take a plain language approach to interpreting Section 559.72(17) or whether courts broadly interpret the statute to include emails.

Related articles:
Florida’s Consumer Collection Practices Act (FCCPA) Part 1: Understanding the FCCPA
Florida’s Consumer Collection Practices Act (FCCPA) Part 2: Implementing safeguards and internal procedures to establish a bona fide error defense to violations of the FCCPA 
What is the Difference Between the FDCPA and the FCCPA?
What Are “Actual Damages” Under the FCCPA and the FDCPA?
What Are “Statutory Damages” Under the FCCPA and the FDCPA?
What Exposure Does a Business Have to Attorneys’ Fees Under the FCCPA and the FDCPA?