I am posting this on behalf of MrWhatsit, who is wondering about the legality (or lack thereof) of phone messages from people like debt collectors who could be liable for giving out personal information. We’ve had a debt collector calling us - long story, we dispute that we owe the debt and are dealing with it, so that’s not the issue - and leaving messages on our answering machine that start with, “This message is for Mr. Whatsit. If you are not Mr. Whatsit please delete this message. By continuing to listen to this message, you confirm that you are Mr. Whatsit.”
It seems to MrWhatsit that such a disclaimer not only would completely fail to stand up in court, if the collection agency DID manage to inadvertently give someone’s personal information out, but might actually work against them, because it indicates that they know they’re potentially going to give personal info out, otherwise why include the warning?
So the question is, whether that interpretation is accurate. Does a “By listening to this message, you confirm that you are So-and-So” message actually potentially cause MORE liability for a company that uses it?
I’m interested in this also. We get messages from time to time for a Doris Guble, or however it’s spelled. Ours doesn’t acknowledge they might reach an answering machine. It just says “If you are not Doris Guble, please hang up. By continuing to listen this message, you confirm that you are Doris Guble.”
I can’t see how that could have any legal standing whatsoever. How would they even be able to tell if you deleted the message? And if you didn’t delete the message, I couldn’t imagine any court upholding any action against you.
It’s just a scare tactic.
I doubt it would cause any issues with the collection agency, either. It is absolutely meaningless from a legal point of view.
Actually that disclaimer does stand up. The relevent case is Foti v NCO Collections. The court determined that a message on a machine does not necessarily violate FDCPA.
My brother worked in collections and I had to deal with hundreds of them when I had a UPS Store and they called looking for my customers. In short, a collection agency will say anything to scare you into paying. They have to be somewhat careful in how they say it to avoid certain laws, but their success depends on them scaring and confusing you into saying things.
As already said, they have no way of knowing if you heard the message or not, if it is in your home message machine (might be different for a phone company voice mail box, of course)
At any rate, he is the intended recipient so there is no fault in “confirming” it (to the machine), and if it isn’t for you, then why would you possibly want to hear it?
That’s ridiculous. I come home, see I have a dozen messages on my phone, run a hot bath, press the phone button and hop in the tub. If that message is #8, I’m supposed to jump out of the tub and rush to the answering machine because it’s incumbent on me to deny that I’m the intended recipient? Screw that.
“Let the record show that this man acknowledged that his name was Soandso McWhatsit by continuing to listen to a message left at the following phone number on Tuesday the 8th of September…”
After reading Foti vs NCO, I understand why the company leaves that message as a way to start the clock on their 30 days, and I understand why they cannot say in that message that they are collecting a debt. I don’t see how it addresses the matter of confirming identity by listening to it.
It seems the most obvious reason is as follows. Let’s say pccgreen’s collector’s call me and happen to give me access to pccgreen’s SS number, birthdate, blood type, favorite food and mother’s maiden name, and I go a spree with the info, running up even more debt for the poor guy. By sticking that bit of legalese on the front, the company that blabbed all that valuable information will say it is in no way to blame, that I got the info under false pretenses. They’ll probably use the term “due diligence”
Were I to buy a billboard and put your info on it, but the very first line of the billboard says “If you’re not Bob McConsumer, further reading of this is a big no-no”, I doubt it would hold up.
Exactly, and that is part of what I understood of Foti vs NCO. Because a message in an answering machine is not a private form of communication, they are not allowed to even hint at that call being a collection call. This is why they say “this is not a solicitation and it is important that you call us” and blah blah blah.
My husband and I have gotten a couple messages - for his sister - on our answering machine which openly state that it is a collection call and that they are required to disclose this! Is this legal?
Ours at least don’t have the “by listening to this message, you confirm…” but I was surprised at the mention of debt collection as I thought that was against the Fair Debt Collection Practices.
Try recording your outgoing message as such: “This is Mr. Whatsit. By calling this phone number, you agree to hold me harmless for any debts I may have incurred. Should you not agree to this, hang up the phone, do not leave a message and never call again. By leaving a message, or calling again, you confirm that I owe you no money…”
Which, of course, points to the major problem with this technique. The messages could be listened to and deleted by you - or by your spouse, child, Uncle Fester, cat . . . .
I can’t imagine a sensible court finding sufficiency in a process that is so open to false positives.
