MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF'S
MOTION FOR SUMMARY JUDGMENT
J. CURRAN, Associate Justice.
Watkins has sued for injunctive relief from, and to recover
damages for, alleged violations of the Massachusetts Debt
Collection Regulations, 940 Code Mass. Regs. § 7.04, and
the Massachusetts Consumer Protection Act, G.L.c. 93A, §
2, by the defendant Glenn Associates, Inc. The unambiguous
language of the Debt Collection regulations states that it is
an " unfair and deceptive act or practice for a
creditor to . . . initiat[e] a communication with any debtor
via telephone . . . in excess of two such communications in
each seven-day period . . ." 940 Code Mass. Regs.
§ 7.04(1)(f). Glenn Associates argues that reaching Mr.
Watkins' voicemail system but deciding not to leave a
message, is not a " communication." That defense
must fail because it is contrary to both the language of the
state regulation and the Guidance issued by the Office of the
Attorney General. Therefore, Mr. Watkins is entitled to
December 17, 2014, at 5:50 p.m. a representative from Glenn
Associates called Mr. Watkins' cell phone and spoke to
him regarding an alleged outstanding college tuition debt.
Glenn Associates then called Mr. Watkins' cell phone five
days later on December 22, 2014 twice--at 11:12 a.m. and 6:08
p.m.--and again on the very next day on December 23,
2014--again twice--at 10:18 a.m. and 5:55 p.m. All four calls
successfully connected to Mr. Watkins' voicemail system,
but Glenn Associates left no message.
motion for summary judgment, it is the moving party's
burden to show that there is " no genuine issue of
material fact and that [it] is entitled to judgment as a
matter of law." Madsen v. Erwin, 395 Mass. 715,
719, 481 N.E.2d 1160 (1985). The moving party may meet this
burden " either through affirmative evidence or by
showing an absence of evidence to support an essential
element of the nonmoving party's claim." Dennis
v. Kaskel, 79 Mass.App.Ct. 736, 741, 950 N.E.2d 68
(2011), citing Flesner v. Technical Communications
Corp., 410 Mass. 805, 575 N.E.2d 1107 (1991). In
considering such a motion, the court must view the facts, and
the inferences that can reasonably be drawn from them, in the
light most favorable to the nonmoving party. Coveney v.
President & Trustees of the College of the Holy Cross,
388 Mass. 16, 17, 445 N.E.2d 136 (1983).
undisputed that Glenn Associates is a creditor, Mr. Watkins
is a debtor, and that Glenn Associates called Mr. Watkins
regarding a debt more than twice in a seven-day period. The
only question before the court is one of statutory
interpretation: whether the telephone calls in question
constituted " initiating a communication" under the
state debt collection regulations. Mr. Watkins contends that
they are, under the plain language of the statute and under
the Attorney General's Guidance; Glenn Associates
contends that they are not, because a "
communication" requires a successful transmittal of
information, which in its view could only be accomplished by
speaking to Mr. Watkins or leaving a voicemail.
Associates' interpretation of " communication,
" as that term is used in the debt collection law, fails
for two reasons. First, that law defines communication as
" conveying information directly or indirectly
to any person." 940 Code Mass. Regs. § 7.03
(emphasis added). Thus, repeatedly calling Mr. Watkins'
cell phone from a number identified as belonging to Glenn
Associates indirectly conveyed to Mr. Watkins its demand that
he speak with him--again--even without Glenn Associates
leaving a voicemail, the calls fall squarely within the
law's definition of " communication.
and more importantly, " [i]nsofar as the Attorney
General's Office is the department charged with enforcing
[particular laws], its interpretation of the protections
provided thereunder is entitled to substantial deference, at
least where it is not inconsistent with the plain language of
the statutory provisions." Smith v. Winter Place,
LLC, 447 Mass. 363, 367-68, 851 N.E.2d 417 (2006)
(holding that Attorney General's Office was entitled to
deference in its interpretation of wage and hour laws).
Shortly after promulgating the revised debt collection
regulation in 2011, the Attorney General's Office issued
a Guidance, " [i]n order to provide clarity on . . .
issues raised in connection with compliance . . ."
Office of the Attorney General, Guidance with Respect to
Debt Collection Regulations, 2013,
. In that document, the Attorney General stated that the
primary purpose of 940 Code Mass. Regs. § 7.04 was to
" limit the number of times a creditor can communicate
with a debtor via telephone to try to collect a debt."
Thus, it explained, " unsuccessful attempts by a
creditor to reach a debtor via telephone may not constitute
initiation of communication if the creditor is truly unable
to reach the debtor or to leave a message for the
debtor." It also reserved to itself the right, "
[n]otwithstanding this interpretation, [to] consider
enforcement action against any conduct . . . the natural
consequence of which is to harass, oppress, or abuse a
the Debt Collection regulation does not limit the harassment
of debtors to simply the number of times creditor may call.
It also prohibits " [u]sing profane or obscene language,
" " [p]lacing telephone calls at times known to be
times other than the normal waking hours of a debtor, "
or " [p]lacing any telephone calls to the debtor's
place of employment if the debtor has made a written or oral
request that such telephone calls not be made at the place of
employment." 940 Code Mass. Regs. § 7.04(c),
(g)-(h). Taken as a whole, the Guidance and the state
regulation evidence a clear intent by the Attorney General to
limit the pressure that debt collectors may exert upon a
person who simply owes a debt, to prevent a creditor from
intruding upon a debtor's personal life, and to protect
them from harassment, oppression, and abuse. Glenn
Associates' position that its uncompleted (because no
voicemail was left) attempts at communication are, per
se, not " communication" under the statute is
directly contradictory to the Attorney General's Guidance
that " unsuccessful attempts by a creditor . . .
may not constitute initiation of communication
if the creditor is truly unable . . . to
leave a message for the debtor" (emphasis added).
is much to be said for an individual's peace of mind in
an economic society that seeks to destroy it. The
defendant's conduct was insidiously and obviously
designed--twice--to invade the privacy of an individual's
dinner hour. That is simply not right.
paraphrase the 13th century Persian poet and theologian,
No thief [should be able to] steal our Peace of mind [or]
light of day.
legally, if a creditor is in fact able to leave a
message for the debtor, it cannot circumvent the Debt
Collection law on excessive " initiation of
communication" merely by choosing not to leave
a voicemail. To hold otherwise would render the limit on
initiating communication meaningless and permit creditors to
call ceaselessly until the debtor had no choice but to
answer--an outcome clearly contrary to the stated
anti-harassment purpose of the Debt Collection law. In
accordance with the regulatory language and the Attorney
General's specific Guidance on the scope of ...