In a case that was defended by John Marees at Messer Strickler Burnette, a District Court judge in Florida has granted a defendant’s motion for summary judgment in a Fair Debt Collection Practices Act case surrounding a common claim being made against collection operations that are communicating with consumers via email — regarding the time that the message is received or read by the consumer being outside the FDCPA’s permissible contact window.
The background: The plaintiff claimed to have received an email from the defendant at 10:14 p.m. The plaintiff claimed that this late-hour email violated both the FDCPA and the Florida Consumer Collection Practices Act (FCCPA), which restrict communications with consumers outside certain hours. Specifically, under both acts, a debt collector may not communicate with a consumer between 9 p.m. and 8 a.m. without prior consent from the consumer.
- The defendant submitted evidence that the email was sent at 8:23 p.m., but the delay in delivery by the email provider meant it arrived in the plaintiff’s inbox at 10:14 p.m. The email was then opened by the plaintiff the following day at 11:44 a.m.
- The plaintiff contended that even though the email was sent earlier, the delivery and receipt time should be considered as the time of communication, making it non-compliant with permissible contact hours.
The ruling: Judge David S. Leibowitz of the District Court for the Southern District of Florida determined that the FDCPA and FCCPA do not consider the delivery or reading time of an email as the time of communication. Instead, the communication occurs at the time it is sent, so long as there is no indication that the consumer received it at an inconvenient hour. The judge concluded that an email sent before 9 p.m. complies with the permissible contact times, regardless of when it is ultimately received or read by the consumer.
- The court found that merely sending an email outside of the 9 p.m. to 8 a.m. window is not enough to constitute a violation, especially when the consumer opens the email during permissible hours.
- Judge Leibowitz noted that the FDCPA’s intention was to protect consumers from disruptive communications, such as phone calls during inconvenient times, rather than applying the same logic to email communications, which can be read at the consumer’s discretion.
