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SJC-12448

         DEBRA ARMATA   vs.   TARGET CORPORATION & another.1



            Hampden.     March 6, 2018. - June 25, 2018.

   Present:   Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, &
                            Kafker, JJ.


Consumer Protection Act, Collection of debt, Unfair or deceptive
     act. Debt. Telephone. Regulation.



     Civil action commenced in the Superior Court Department on
July 20, 2015.

     The case was heard by John S. Ferrara, J., on motions for
summary judgment.

     The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.


     Sergei Lemberg for the plaintiff.
     Brian Melendez, of Minnesota (Alan E. Brown also present)
for the defendants.
     Maura Healey, Attorney General, & Benjamin K. Golden & Max
Weinstein, Assistant Attorneys General, for the Attorney
General, amicus curiae, submitted a brief.



     1 Target Enterprises, Inc., doing business as Target
Corporate Services, Inc.
                                                                   2



    LENK, J.   In this case, we construe the revised

Massachusetts debt collection regulations, which limit how often

a creditor may attempt to contact a debtor via telephone in

order to collect a debt.     Title 940 Code Mass. Regs.

§ 7.04(1)(f) (2012) (regulation), implementing G. L. c. 93A,

§ 2, prohibits creditors from "[i]nitiating a communication with

any debtor via telephone, either in person or via text messaging

or recorded audio message, in excess of two such communications

in each seven-day period."    Creditors are exempt under the

regulation when they are "truly unable to reach the debtor or to

leave a message for the debtor."    Office of the Attorney

General, Guidance with Respect to Debt Collection Regulations

(2013) (http://www.mass.gov/ago/docs/government/debt-collection-

guidance-2013.pdf [https://perma.cc/V4Q8-Y39E]) (Attorney

General's guidance).   We must decide whether the regulation

applies to creditors, such as the defendants, who use automatic

dialing devices or voluntarily decide not to leave voicemail

messages.   We conclude that it does.

    Debra Armata commenced an action in the Superior Court

against Target Corporation and Target Enterprises, Inc., doing

business as Target Corporate Services, Inc. (collectively,

Target), alleging that Target violated the regulation by

telephoning her more than two times in a seven-day period in
                                                                    3


order to collect a debt.     A Superior Court judge granted

Target's motion for summary judgment and denied Armata's cross-

motion for summary judgment regarding liability under the

regulation, and Armata appealed.     Target does not deny that it

telephoned Armata more than twice in a seven-day period in order

to collect a debt.    Rather, Target maintains that it did not

"initiate" any communications within the meaning of the

regulation because it telephoned Armata with an automatic

dialing device, which only plays the prerecorded message after

the call is answered and no live Target representative is

available.    Target also contends that the majority of telephone

calls, which Armata did not answer, did not constitute

"communications" within the meaning of the regulation because

they did not convey any information, given that Target did not

leave voicemail messages.     In the alternative, Target claims

that it was exempt from the regulation because, although it was

able to reach Armata, it could not, as a practical matter, leave

her voicemail messages without violating State and Federal law.

    Target's proffered interpretation of the regulation is

inconsistent with its plain meaning and the Attorney General's

guidance, and is contrary to the regulation's purpose of

preventing creditors from harassing, oppressing, or abusing

debtors.     The regulation applies to any attempted telephonic

communication by a creditor to a debtor in an effort to collect
                                                                       4


a debt, so long as, as here, the creditor is able to reach the

debtor or to leave a voicemail message for the debtor.    Further,

Target was not exempt from the regulation, because it was not

actually precluded from leaving Armata voicemail messages under

State or Federal law.   Accordingly, Armata is entitled to

summary judgment on the issue of liability.

     1.   Background.   The material facts are not in dispute.    In

May, 2013, Armata applied for a Target-branded debit card.       She

then incurred a debt to Target; the debt at issue was more than

thirty days past due, and was incurred for personal purposes.

Target telephoned Armata numerous times beginning on January 23,

2015, in order to collect the debt.2   There were times when

Target telephoned Armata concerning the debt more than twice in

a seven-day period.3




     2 Target also telephoned Armata in 2014. Target asserts,
and Armata disputes, that the telephone calls in 2014 were from
Target's pharmacy, and thus did not concern the debt. This
dispute is not material to the issue of liability, however,
because the parties agree that Target called Armata numerous
times in 2015 to in order to collect a debt.
     3 There is some discrepancy as to the precise number of
telephone calls that Armata received. For example, Armata
claims that Target telephoned her six times between February 12
and February 18, 2015; six times between February 16 and
February 20, 2015; and six times between April 13 and April 18,
2015. Target maintains that it telephoned her only five times
between February 16 and February 20, 2015, and four times
between April 13 and April 18, 2015. This dispute is immaterial
for purposes of determining liability, as the parties agree that
                                                                     5


    No person physically placed the telephone calls to Armata;

rather, Target telephoned her using a "predictive dialer," which

is an automatic dialing device.    When Target cardholders answer

the telephone calls placed by Target's predictive dialer, a live

representative is on the line ninety-five per cent of the time.

For the other five per cent of telephone calls, a recorded

message is played; the recorded message does not start until the

predictive dialer detects that someone has answered the

telephone call and only if a live representative is unavailable.

    When Armata did answer the telephone calls from Target, she

heard a prerecorded message requesting that she contact Target.

The record is silent as to whether she heard such a message more

than twice in any given week.    Armata was never connected with a

live person.   Although Target was able to leave Armata voicemail

messages, it chose not to, based on an internal policy not to

leave voicemail messages.

    Armata commenced an action in the Superior Court, alleging

that Target violated the regulation by placing more than two

debt collection calls to her cellular telephone within a seven-

day period.    See 940 Code Mass. Regs. § 7.04(1)(f).   Target


there were times when Target telephoned Armata concerning the
debt more than twice in a seven-day period.

     Target's policy with respect to the number of telephone
calls placed is to refrain from telephoning consumers more than
four times per day.
                                                                        6


moved for summary judgment, and Armata cross-moved for summary

judgment as to liability.      Reasoning that Target's unsuccessful

attempts to speak to Armata via telephone did not constitute

"communications" as defined by the regulations, and that there

was no indication that Armata heard a prerecorded message from

Target more than twice in a given week, a Superior Court judge

denied Armata's motion and allowed Target's motion.        Armata

appealed, and we transferred the case from the Appeals Court to

this court on our own motion.

    2.      Discussion.   a.   Standard of review.   "The standard of

review of a grant of summary judgment is whether, viewing the

evidence in the light most favorable to the nonmoving party, all

material facts have been established and the moving party is

entitled to a judgment as a matter of law."       Augat, Inc. v.

Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).        "In a case

like this one where both parties have moved for summary

judgment, the evidence is viewed in the light most favorable to

the party against whom judgment [has entered]" (citation

omitted).    Boazova v. Safety Ins. Co., 462 Mass. 346, 350

(2012).     "Because our review is de novo, we accord no deference

to the decision of the motion judge."       DeWolfe v. Hingham Ctr.,

Ltd., 464 Mass. 795, 799 (2013).

    b.      Statutory and regulatory framework.      General Laws

c. 93A, § 2 (a), prohibits "[u]nfair methods of competition and
                                                                   7


unfair or deceptive acts or practices in the conduct of any

trade or commerce."   The Attorney General may implement rules

and regulations interpreting this provision.   G. L. c. 93A,

§ 2 (c).   In 2012, the Attorney General amended the regulation,

940 Code Mass. Regs. 7.04(1)(f), which now provides:

    "It shall constitute an unfair or deceptive act or
    practice for a creditor to contact a debtor . . . [by]
    [i]nitiating a communication with any debtor via
    telephone, either in person or via text messaging or
    recorded audio message, in excess of two such
    communications in each seven-day period to either the
    debtor's residence, cellular telephone, or other
    telephone number provided by the debtor as his or her
    personal telephone number . . ." [emphasis added].

    In 2013, in response to public inquiries, the Attorney

General issued "Guidance With Respect to Debt Collection

Regulations."   This guidance explained:

    "The goal of this provision is to not only limit the
    number of times a creditor can communicate with a
    debtor via telephone to try to collect a debt, but to
    also limit the fees that a creditor can impose on a
    debtor (thereby limiting voicemails and text messages
    to twice in a seven day period). Accordingly,
    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.
    Notwithstanding this interpretation, the Office of the
    Attorney General may still consider enforcement action
    against any conduct, including initiation of
    communication via telephone, the natural consequence
    of which is to harass, oppress, or abuse a debtor"
    (emphasis added).
                                                                     8


See Attorney General's guidance, supra at 1.4

     c.   Analysis.   The parties agree that, for purposes of the

regulation, Target was a creditor and Armata was a debtor.     See

940 Code Mass. Regs. § 7.03 (2012).   It also is undisputed that,

at times in 2015, Target telephoned Armata more than twice in a

seven-day period in an effort to collect a debt.    The only

dispute is whether, in telephoning Armata, Target was

"[i]nitiating a communication . . . via telephone, either in

person or via text messaging or recorded audio message" within

the meaning of the regulation.5   See 940 Code Mass. Regs.

§ 7.04(1)(f).

     "We interpret a regulation in the same manner as a statute,

and according to traditional rules of construction."    Warcewicz

v. Department of Envtl. Protection, 410 Mass. 548, 550 (1991).


     4 In addition to the guidance, discussed infra, the Attorney
General submitted a post-argument amicus letter in this case
expressing her view that, pursuant to the regulation, "a
creditor violates [G. L. c.] 93A if it initiates more than two
telephone calls to a debtor's home, cell[ular], or personal
telephone number in a seven-day period, even if the creditor
uses a predictive dialer or voluntarily chooses not to leave a
message." This explanation was not published or otherwise
publicly available prior to oral argument in this case, and we
do not consider it. To the extent the Attorney General seeks to
clarify the meaning of the regulation, she is free to publish
additional guidance or amend the regulation as needed.
     5 Target does not challenge the regulation as being
inconsistent with General Laws c. 93A, § 2. The only issue is
whether the regulation, as written, encompasses Target's
telephone calls to Armata.
                                                                      9


"Thus, we accord the words of a regulation their usual and

ordinary meaning."    Id.

    The regulation does not define "initiating."      Webster's

dictionary defines the term "initiate" as "to begin or set

going," to "make a beginning of," or to "perform or facilitate

the first actions, steps, or stages of."   Webster's Third New

International Dictionary 1164 (1993).   See Commonwealth v.

Samuel S., 476 Mass. 497, 501 (2017) ("we look to dictionary

definitions as a guide to a term's plain or ordinary meaning").

The current language of the regulation was the result of the

Attorney General's revisions in 2012.   The prior version

prohibited creditors from "[e]ngaging any debtor in

communication via telephone, initiated by the creditor, in

excess of two calls in each seven-day period at a debtor's

residence and two calls in each 30-day period . . ." [emphasis

added].   See 940 Code Mass. Regs. § 7.04(1)(f) (1993).     By

contrast, the current version makes no mention whether the

creditor and the debtor need actually "engage" in a

communication.   See 940 Code Mass. Regs. § 7.04(1)(f).     The use

of the word "initiating" thus indicates that a creditor need not

be successful in reaching a debtor for the regulation to apply.

As discussed, infra, this is reinforced by the Attorney

General's guidance.
                                                                  10


     The regulation defines "communication" as "conveying

information directly or indirectly to any person through any

medium."6   See 940 Code Mass. Regs. § 7.03.    The regulation also

specifies that this communication may be "in person," via "text

messaging,"7 or via "recorded audio message."    940 Code Mass.

Regs. § 7.04(1)(f).   A creditor therefore "initiat[es] a

communication . . . via telephone" under the regulation every

time it attempts to contact a debtor's telephone to convey

information, unless the creditor is exempted, as discussed

infra.   The regulation applies regardless of whether the

telephonic communication is live, via text message, or via

recorded audio message.

     The Attorney General's guidance carves out an exemption

under the revised regulation, namely, that "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"


     6 The definition of "communication or communicating" in the
regulation explicitly excludes "nonidentifying communications,"
which, in turn, are defined as "any communication with any
person other than the debtor in which the creditor does not
convey any information except the name of the creditor and in
which the creditor makes no inquiry other than to determine a
convenient time and place to contact the debtor" (emphasis
added). 940 Code Mass. Regs. § 7.03.
     7 It is undisputed that Target never sent Armata text
messages concerning the debt.
                                                                   11


(emphasis added).   See Attorney General's guidance, supra at 1.

We construe the Attorney General's guidance to mean that

attempts by a creditor to reach a debtor via telephone do

constitute initiation of communication if the creditor is able

to reach the debtor or leave a voicemail message for the debtor.

     As it is not "arbitrary, unreasonable or inconsistent with

the plain terms of the regulation itself," the Attorney

General's interpretation is entitled to "substantial deference."

See Biogen IDEC MA, Inc. v. Treasurer & Receiver Gen., 454 Mass.

174, 184 (2009).    The Attorney General's guidance ensures that

creditors are not penalized for attempting to reach a debtor

when it is actually impossible to do so; for example, when

debtors do not answer and their voicemail or answering system is

not set up, their mailbox is full, or their telephones have been

disconnected.8   In such circumstances, penalizing the creditor

would not further the purpose of the regulation, which was

designed to prevent creditors from engaging in practices that

would "harass, oppress, or abuse a debtor."    See Attorney

General's guidance, supra at 1.   See also Attorney General,

     8 We need not define all the ways in which a creditor would
be "truly unable" to reach a debtor. Target does not contend
that it was truly unable to reach Armata. Nor would such an
argument be credible in this case, since Armata did occasionally
answer Target's telephone calls. Additionally, there is no
dispute that Target had Armata's correct telephone number, which
Target had obtained Armata's prior consent to telephone.
                                                                    12


Press Release, Updated Debt Regulations Provide Stronger

Protections (Mar. 1, 2012), (http://www.mass.gov/ago

/news-and-updates/press-releases/2012/2012-03-01-debt-

collection-regulations.html [https://perma.cc/F656-9NE3])

(regulation was "designed to provide stronger consumer

protections by addressing changing technology," and to "ensure

that the playing field is level for both creditors and consumers

so that all parties are better protected").

    Target nonetheless contends that it did not violate the

regulation for several reasons.    Target argues that it did not

"initiate" communications within the meaning of the regulation

because it used a predictive dialer to place the calls.    Target

also contends that most of its telephone calls to Armata were

not "communications" because they did not convey information,

given that Armata did not answer them and Target did not leave

any voicemail messages.   In the alternative, Target argues that

its telephone calls to Armata were exempt under the Attorney

General's guidance, because, as a practical matter, it could not

leave her voicemail messages without running the risk of

violating State and Federal law.   Each of these arguments is

unavailing.

    First, Target insists that the regulation does not apply to

"all calls" but, rather, only to those calls that are

"initiat[ed] . . . either in person or via text messaging or
                                                                  13


recorded audio message."   This interpretation is based on

Target's incorrect premise that the phrase "either in person or

via text messaging or recorded audio message" modifies the word

"initiating," rather than "communication . . . via telephone."9

Relying on this interpretation, Target maintains that its

telephone calls to Armata are not covered by the regulation

because they were not "initiat[ed] . . . via . . . recorded

audio message," but with a predictive dialer.   Target's use of a

predictive dialer ensured that a live representative was waiting

on the line most of the time, and, if a recorded message was

used, it did not start playing until the dialer detected a

connection and a live representative was unavailable.   Target

believes that these features of a predictive dialer immunize it

from the regulation, which Target contends is aimed at "true

robocalls,[10] where a recorded message always, automatically, and




     9 See 940 Code Mass. Regs. § 7.04(1)(f) (2012) (prohibiting
creditors from "[i]nitiating a communication with any debtor via
telephone, either in person or via text messaging or recorded
audio message, in excess of two such communications in each
seven-day period").

     10Target's use of the term "robocalls" is unsupported.
Nothing in the language of the regulation or in the Attorney
General's guidance mentions "robocalls," let alone suggests a
meaningful distinction between "robocalls" and telephone calls
from a predictive dialer. See 940 Code Mass. Regs.
§ 7.04(1)(f); Attorney General's guidance, supra.
                                                                  14


immediately plays as soon as the call is answered, and no human

representative is even available."

     Target's argument that the use of a predictive dialer

shields it from liability contradicts the plain meaning of the

regulation as well as its purpose.    As explained, supra, the

phrase "either in person or via text messaging or recorded audio

message" modifies "communication . . . via telephone," which

immediately precedes it.   See Deerskin Trading Post, Inc. v.

Spencer Press, Inc., 398 Mass. 118, 123 (1986) (general rule of

grammatical construction is that "a modifying clause is confined

to the last antecedent" [citation omitted]).   Target counters

that if the phrase "either in person or via text messaging or

recorded audio message" modifies "communication . . . via

telephone," then it is superfluous.   In fact, the phrase

underscores that the regulation is not limited to traditional

telephone calls placed by a live person; it applies regardless

of whether the initiated telephonic communication takes place

via a live person or a recorded audio message, or whether the

initiated communication takes the form of text messages.11


     11In support of its position that the regulation was not
intended to cover calls placed with a predictive dialer, Target
points out that autodialed calls are heavily regulated under the
Federal Telephone Consumer Protection Act (TCPA). See 47 U.S.C.
§ 227. This argument is unconvincing. The TCPA does not
regulate the frequency of creditor calls, which is the primary
concern of the regulation at issue in this case. See generally
                                                                  15


     Moreover, the regulation is not concerned with the specific

technology a creditor uses to contact a debtor; it seeks to

limit how often a creditor attempts to reach a debtor's

telephone and causes the debtor to incur fees.12   See Attorney

General's guidance, supra at 1.   Target's reading would create a

loophole so large as to swallow the rule, such that nearly every

creditor would be able to evade the limits imposed by the

regulation simply by changing its dialing technology.   The

potential for harassment stems in large part from the volume of

initiated communications; it makes no difference what technology

a creditor uses to dial the debtor's telephone or at what point

a prerecorded message begins playing.




id. Rather, the TCPA prohibits, inter alia, using automated
telephone equipment to telephone certain numbers at any time,
and for any reason, without prior express consent. 47 U.S.C.
§ 227(b)(1)(A)(iii), (b)(1)(B). For the same reason, Target's
reliance on Ybarra v. Dish Network, L.L.C., 807 F.3d 635 (5th
Cir. 2015), is misplaced. In that case, the United States Court
of Appeals for the Fifth Circuit concluded that, to be liable
under the "artificial or prerecorded voice" section of the TCPA,
"a defendant must make a call and an artificial or prerecorded
voice must actually play." Id. at 640. The court in Ybarra
reasoned that the TCPA regulates "using" an artificial or
prerecorded voice, so it is not sufficient that the voice be "on
standby as the call was placed." Id. at 641. By contrast, the
regulation in this case does not contain any type of blanket ban
on the "use" of automated telephone equipment.
     12Such fees presumably would be imposed on debtors by their
cellular telephone providers when, for example, debtors receive
text messages sent by creditors.
                                                                  16


     Second, Target contends that most of its telephone calls to

Armata, which went unanswered, were not "communications" within

the meaning of the regulation.    The regulation defines

"communication" as "conveying information directly or indirectly

to any person through any medium" (emphasis added).    See 940

Code Mass. Regs. § 7.03.   Target essentially argues that most of

its telephone calls did not "convey[] information" because

Armata did not answer them and Target did not leave voicemail

messages.   This argument is unavailing because it reads the word

"communication" in isolation.    The regulation does not limit

"communication[s]," but, rather, the initiation of

communications.   See 940 Code Mass. Regs. § 7.04(1)(f).   The

fact that Target did not successfully directly convey

information to Armata is unimportant, because Target

nevertheless initiated the process of conveying information to

Armata via telephone.13

     Target is again overlooking the purpose of the regulation.

A creditor can "harass, oppress, or abuse" a debtor with its

telephone practices by calling incessantly, even if it does not

leave voicemail messages notwithstanding being able to do so.

     13Even without the use of voicemail messages, a creditor
can convey indirectly that it seeks payment from a debtor by
calling and hanging up repeatedly, as underscored by the
regulation's antiharassment purpose. See Attorney General's
guidance, supra at 1.
                                                                  17


See Attorney General's guidance, supra at 1.   Under Target's

reading, a creditor would be permitted to telephone a debtor

unremittingly so long as it chose not to leave voicemail

messages.   In such a scheme, a "communication" would occur only

if the debtor answered the call.   Target's interpretation

undermines the purpose of the regulation by essentially

requiring debtors to answer calls from creditors twice per week

in order to compel the creditors to stop calling that week.

     Third, Target seeks refuge in the exemption outlined by the

Attorney General's guidance for creditors who are unable to

leave debtors voicemail messages.14   Target essentially argues

that it was caught between a proverbial rock and a hard place:

although it was physically possible to leave Armata voicemail

messages, as a practical matter, Target could not do so because

it risked violating the Attorney General's other debt collection

regulations and the Federal Debt Collection Practices Act

(FDCPA), 15 U.S.C. § 1692-1692p.   This argument is unpersuasive,

     14The Attorney General's guidance provides no exemption for
those who voluntarily choose not to leave voicemail messages.
See Attorney General's guidance. Indeed, in 2016, the Attorney
General entered into an "assurance of discontinuance" with a
company that "did not consider outgoing calls where its
collectors decided not to leave a message" to constitute
"communications" under the regulation. See In re Ditech
Financial LLC, Suffolk Superior Court, No. 16-2437E, slip op. at
4 (Aug. 4, 2016). The company thereafter agreed to discontinue
this practice in lieu of the Attorney General commencing suit.
Id.
                                                                   18


both because the Massachusetts regulations are not as

restrictive as Target contends, and because Target does not fall

within the purview of the FDCPA.

     On the one hand, the Massachusetts debt collection

regulations prohibit creditors from "[c]ommunicat[ing] by

telephone without disclosure of the name of the business or

company of the creditor and without disclosure of the first and

last name of the individual making such communication or a first

name and a personal identifier for such individual such as a

code or alias."   940 Code Mass. Regs. § 7.04(d).   At the same

time, 940 Code Mass. Regs. §§ 7.05(2) and 7.06(1)(a) (2012)15

prohibit a creditor from implying "the fact of a debt" to anyone

who is not the debtor.   Target reasons that, because it may not

leave a voicemail message without identifying itself, and

because it cannot know who will listen to a voicemail message,

it cannot leave such a message without violating these other

regulations.   See 940 Mass. Code Regs. § 7.05(1) ("A creditor

may assume that all contacts directed to the debtor's household

are received either by the debtor or persons residing in the




     15Title 940 Code Mass. Regs. § 7.05(2) (2012) prohibits
creditors from implying the fact of a debt specifically to
persons who reside in the debtor's household, while 940 Code
Mass. Regs. § 7.06(1)(a) prohibits creditors from implying the
fact of the debt to anyone other than the debtor.
                                                                    19


household of the debtor unless the creditor knows or should know

information to the contrary").

    We do not interpret the regulatory scheme as prohibiting

Target from leaving a voicemail message that simply states the

caller's name, that the call was on behalf of Target, and that

the recipient should return the call, so long as the message

does not mention or in any way imply that the call concerns the

collection of a debt.   See 940 Code Mass. Regs. § 7.05(2) ("It

shall constitute an unfair or deceptive act or practice for a

creditor to imply the fact of a debt, orally or in writing, to

persons who reside in the household of a debtor, other than the

debtor" [emphasis added]); id. at § 7.06(1)(a) ("It shall

constitute an unfair or deceptive act or practice for a creditor

to contact or threaten to contact persons [other than the debtor

or those residing in the household of a debtor] in connection

with a debt in any of the following ways: . . . Implying the

fact of the debt to any such person" [emphasis added]).     The

regulation simply requires that, when attempting to contact a

debtor, a creditor affirmatively identify the caller and the

company.   940 Code Mass. Regs. §§ 7.04(d).   Accordingly, Target

was not prevented under the Massachusetts debt collection

regulations from leaving Armata voicemail messages, so long as

Target refrained from implying that the telephone call concerned

a debt.
                                                                  20


     Nor was Target barred from leaving Armata voicemail

messages under the FDCPA, which also contains a provision

prohibiting debt collectors from communicating with third

parties about a debt.   See 15 U.S.C. § 1692c(b).   Unlike the

Massachusetts regulation, the FDCPA explicitly requires debt

collectors to disclose that any "communication is from a debt

collector," 15 U.S.C. § 1692e(11), so a debt collector would

have to include such information in its voicemail messages.

Target was not prevented from leaving Armata voicemail messages

under the FDCPA, however, because Target does not fall within

the statute's definition of a debt collector.    See 15 U.S.C.

§ 1692a(6).16   Target was calling Armata to collect a debt on its

own behalf, which exempts it from the FDCPA.17   See id.




     16See 15 U.S.C. § 1692a(6) ("The term 'debt collector'
means any person who uses any instrumentality of interstate
commerce or the mails in any business the principal purpose of
which is the collection of any debts, or who regularly collects
or attempts to collect, directly or indirectly, debts owed or
due or asserted to be owed or due another"; Chiang v. Verizon
New England, Inc., 595 F.3d 26, 41 (1st Cir. 2010) ("Creditors
collecting on their own accounts are generally excluded from the
[FDCPA's] reach" unless they use "any name other than [their]
own which would indicate that a third person is collecting or
attempting to collect such debts").
     17As to creditors that are debt collectors bound by the
FDCPA, we invite the Attorney General to provide guidance as to
how such creditors should conduct their telephonic debt
collection practices in light of the stricter FDCPA
requirements.
                                                                   21


    Accordingly, at times when Target was able to reach Armata

or leave a voicemail message for her, Target initiated telephone

communications within the meaning of the regulation.    Target

initiated such telephone communications to collect a debt more

than twice in a seven-day period.     Because the meaning of the

regulation is a question of law, as to which there are no

material facts in dispute, Armata is entitled to summary

judgment on the issue of liability.     Armata's request for

damages, costs, and injunctive relief requires further

proceedings in the Superior Court.

    Conclusion.   The order allowing Target's motion for summary

judgment and denying Armata's cross motion for summary judgment

is vacated and set aside.   The matter is remanded to the

Superior Court, where an order shall enter granting summary

judgment for Armata, and for further proceedings consistent with

this opinion.

                                      So ordered.
