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(4)(i)) or the email procedures based on
communication by the prior debt collector (i.e.,
The bureau's theory here goes like this:
Under 1006.6(d)(4)(i), the consumer has either
impliedly consented to the use of the employerprovided email address for communications
with the debt collector by sending the debt
collector an email from that address or has
affirmatively consented to the use of the
employer-provided email address by granting
the debt collector express permission to send
an email to that email address.
Likewise, if the debt collector is proceeding
under 1006.6(d)(4)(iii), relying on procedures
based on the consumer's communication with
the prior debt collector, the prior debt collector
would have satisfied one or the other of these
same implied or express consent requirements.
However, procedures based on
communications by the creditor (i.e.,
1006.6(d)(4)(ii)) are not included in
this exemption for emails to consumers'
employer-provided email addresses.
In fact, those email procedures expressly
prohibit a debt collector from sending emails
to consumer's email addresses that the debt
collector knows to be employer-provided.
See Section 1006.6(d)(ii)(E) (prohibiting
emails based on the " communication by
creditor " procedure where the email address
" has a domain name that is available for
use by the general public, unless the debt
collector knows the address is provided by
the consumer's employer. " ).
And again, nothing's easy: The rule lists
two comments about the employer-provided
email provision of Section 1006.6(d)(ii). First,
it specifies that a " domain name of an email
address ... available for use by the general
public " means that multiple members of the
general public can use that email domain,
either for free or via paid subscription.
But an email domain available for use
by the general public does not include one
" reserved for use by specific registrants,
such as a domain name branded for use by a
particular commercial entity (e.g., john.doe@
springsidemortgage.com) or one reserved for
particular types of institutions like government
agencies, educational institutions, or nonprofits
(e.g., email@example.com, john.doe@
university.edu, or firstname.lastname@example.org). "
See comment 6(d)(4)(ii)(E)-1.
Comment 6(d)(4)(ii)(E)-2 provides-
quite obviously-that a debt collector knows
that a consumer's email address is employerprovided if the consumer has told the debt
collector so. But, comfortingly, it additionally
clarifies that Section 1006(d)(4)(ii)(E) " does
not require a debt collector to conduct a
manual review of consumer accounts to
determine whether an email address might
be employer provided. "
So, when communicating with a consumer
by email, go ahead and use that employerprovided email address if you're relying on
either of the procedures for express or implied
consent from the consumer to the debt
collector or to a prior debt collector, but not if
you're relying on the procedure in which the
consent to send an email to a consumer at an
employer-provided email address arises from
communications with the creditor.
These email procedures and the attendant
" safe harbor " technically take effect, like
the rest of the rule, on Nov. 30, 2021.
But because the email procedures do not
reflect hard requirements, agencies may
begin relying on them prior to that date-
understanding, of course, that the " safe
harbor " provided is not a pure safe harbor
but rather sets the stage for asserting a bona
fide error defense.
It seems just as likely that a court will " bless "
the safe-harbor procedures before the rule's
effective date as after, provided that the debt
collector has undertaken the appropriate steps
to create a policy and procedure that accords
with Section 1006.6(d)(3).
Members can read more about Reg F's
communication requirements here:
In the next installment of this series, we'll
take a closer look at the two " safe harbor "
email procedures that rely on communications
between a consumer and a debt collector, set
forth in Section 1006.6(d)(4)(i) and (iii).
Colin Winkler is the corporate counsel and
Katy Zillmer is the communications manager
for ACA International.
Collectors will want to be
crystal clear about the
fact that any request for the
preferences in an opt-out
mechanism does not need to
be completed in order for the
consumer to opt out.
The Reg F " safe harbor "
provide limited cover only
for inadvertent third-party
disclosures. Agencies must
have procedures adapted to
avoid a bona fide error in
sending an email that results
in a third-party disclosure.
These email procedures
and the attendant " safe
harbor " take effect on Nov.
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