concurring and dissenting:

I concur in the portion of the opinion that holds that United Student Aid Funds is not exempt from liability under the “Government Actor” exemption to the Fair Debt Collection Practices Act, 15 U.S.C. § 1692a(6)(C). I respectfully dissent, however, from the portion that holds that the Higher Education Act, 20 U.S.C. § 1071-99 , preempts the Oregon Unfair Debt Collection Practices Act.

United Student Aid Funds concedes that it is a “debt collector” under the FDCPA. We *1267 hold that it is not a “Government actor” so that it is not exempt from compliance with the FDCPA requirements. The majority agrees that the HEA does not trump or preempt the FDCPA, since nothing in either statute suggests preemption of the other. The Oregon UDCPA provides that compliance with the FDCPA is compliance with Oregon’s UDCPA. Or.Rev.Stat. § 646.648. All that can be at issue, then, in this case is whether the remedies available to the borrower, provided in the Oregon Act, applicable if the debt collector has violated the FDCPA, are preempted by the HEA. There appears to be no conflict between the HEA and the Oregon Act in this aspect of the UDCPA unless we were to hold that any remedy of the borrower against the debt collector for violation of the FDCPA is in conflict with the Secretary’s HEA regulations.

In deciding whether the HEA preempts the Oregon UDCPA, “[0]ur sole task is to ascertain the intent of Congress.” Keams v. Tempe Technical Institute, Inc., 39 F.3d 222, 225 (9th Cir.1994) (quoting California Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 280 , 107 S.Ct. 683, 689 , 93 L.Ed.2d 613 (1987)). Since Congress did not expressly preempt state law in the area of debt collection, the majority must rely on one or the other of the two remaining ways to find preemption: either that “Congress intended to occupy the entire field, leaving no room for the operation of state law,” id. at 225, or that “compliance with both state and federal law would be impossible, or state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’ ” Id.

The first rationale has been foreclosed by Keams . The question in Keams was whether the HEA preempted state torts suits against accrediting agencies. In holding that it did not, we emphasized the fact that the HEA, i.e. Congress, did expressly preempt state law in a number of areas. Id. (citing 20 U.S.C. § 1099 (loans not subject to state disclosure requirements); 20 U.S.C. § 1078 (d) (state usury laws inapplicable); 20 U.S.C. § 1091a(a) (state statutes of limitations inapplicable); 20 U.S.C. § 1091a(b) (state infancy defenses unavailable)).

Id. (internal quotation omitted) (emphasis added). We rejected any inference of preemption based upon congressional intent to occupy the entire field. Id. “It is apparent from the language of the express preemption clauses that Congress expected state law to operate in much of the field in which it was legislating.” Id. at 225-26. Because state laws regulating pre-litigation debt collection activities similarly are not expressly preempted by the HEA, I conclude that Congress did not intend to occupy the entire field in the area of pre-litigation debt collection activities.

The majority appears to rely on the second rationale for preemption: that state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. However, this rationale was rejected by the court in Keams with respect to negligence suits against accrediting agencies. It should similarly be rejected here.

There is a ‘“presumption against finding pre-emption of state laws in areas traditionally regulated by the States.’” Id. at 225 (quoting California v. ARC America Corp., 490 U.S. 93, 101 , 109 S.Ct. 1661, 1665 , 104 L.Ed.2d 86 (1989)). As the Supreme Court has recently reiterated,

Medtronic, Inc. v. Lohr, — U.S. -, -, 116 S.Ct. 2240, 2250 , 135 L.Ed.2d 700 (1996) (citations and internal quotation marks omitted). Regulation to prevent the deception or harassment of consumers is plainly within such an area of traditional state regulation. See, e.g., Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 , 83 S.Ct. 1210 , 10 L.Ed.2d 248 (1963) (regulation to prevent deceptive practices). Yet the majority opinion appears categorically to hold that all state laws that prohibit debt collectors from doing anything related to pre-litigation federal debt collection are preempted as “inconsistent” with the HEA-regardless of the content of the state law.

This categorical approach is simply wrong. Absent a conclusion that Congress intended to occupy the entire field of pre-litigation debt collection activities, a position the majority appears properly to disclaim, we must look to the particular state law provision by provision in order to determine whether any provision is inconsistent with the HEA.

The majority relies heavily on the Secretary’s Federal Register announcement to find preemption. However, preemption is a matter of Congressional intent, not the Secretary’s. See Keams, 39 F.3d at 225 ; California Fed. Sav. & Loan Ass’n, 479 U.S. at 280 , 107 S.Ct. at 689 . To be sure, “ ‘a federal agency acting within the scope of its congres-sionally delegated authority may pre-empt state regulation.’ ” Independent Energy Producers Ass’n v. California Pub. Util. Comm’n, 36 F.3d 848, 853 (9th Cir.1994) (quoting Louisiana Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 369 , 106 S.Ct. 1890, 1898-99 , 90 L.Ed.2d 369 (1986)). Thus, if the Secretary issued a regulation requiring a guarantor to contact a defaulted debtor at least once every three months, and a state law forbad contact more than twice a year, presumably the state law would be preempted. There is, however, no such allegation in the instant case. USA Funds does not contend that it is impossible to comply with both a particular GSL regulation and the Oregon UDCPA.

Ordinarily, when a statute is silent or ambiguous with respect to a particular issue, we defer to an agency’s reasonable interpretation of the statute. See Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 843 , 104 S.Ct. 2778, 2781-82 , 81 L.Ed.2d 694 (1984).

Smiley v. Citibank (South Dakota), N.A., — U.S. -, -, 116 S.Ct. 1730, 1733 , 135 L.Ed.2d 25 (1996). These general principles do not readily apply in the preemption context. In evaluating a statute’s preemptive effect, we presume that Congress does not intend to preempt in areas traditionally regulated by the state absent a clear manifestation of intent to the contrary. Medtronic, — U.S. at -, 116 S.Ct. at 2250. Thus, if Congress is silent as to its intent to preempt, we ordinarily find no preemption, especially where, as here, Congress has expressly preempted state law in other areas. Kearns, 39 F.3d at 225 . In such a situation, there is no reason to defer to an agency interpretation. Cf. Smiley, — U.S. at -, 116 S.Ct. at 1735 (“We may assume (without deciding) that the [question of whether a statute is preemptive] must always be decided de novo by the courts.”); Chevron, 467 U.S. at 842-43 , 104 S.Ct. at 2781 (“If the intent of Congress is clear, that is the end of the matter.”).

Even assuming arguendo that some deference to the agency’s interpretation is appropriate in this case, I still disagree with the majority’s preemption analysis. The majority cites the Secretary for the proposition that “preemption includes any State law that would hinder or prohibit any activity” taken by third-party debt collectors prior to litigation. Maj. Op. at 1266 (citing 55 Fed.Reg. at 41021). “Because the Oregon UDCPA consists of nothing but prohibitions, restrictions *1269 and burdens on collection activity, it is preempted.” Id. This is an overbroad interpretation of the regulations and of the scope of HEA preemption. The Secretary’s pronouncement is in a section entitled “Contacts With Borrowers by Demand Letters and Telephone Calls.” 55 Fed.Reg. at 41021. It explains that “the Department’s regulations require lenders and agencies to make a number of contacts with the borrower directly, at specified intervals, using particular warnings to attempt to persuade the borrower to repay the loan.” Id. It continues, “These provisions therefore preempt State law that would prohibit, restrict, or impose burdens on the completion of that sequence of contacts_” Id. (emphasis added). “[T]his preemption includes any State law that would hinder or prohibit any activity taken by these third parties to complete these required steps.” Id. (emphasis added). Thus, contrary to the majority’s suggestion, the regulations do not purport to preempt all state laws that prohibit, restrict, or impose burdens on activity taken by third-party debt collectors prior to litigation, but only those state laws that prohibit, restrict or impose burdens on activity taken by third parties to complete these required steps. Only those state laws that prohibit or burden compliance with the HEA or GSL regulations are preempted.

There are many provisions of the Oregon UDCPA that in no way prohibit or burden compliance with the HEA or GSL regulations. For instance, the Oregon UDCPA prohibits a debt collector, while collecting or attempting to collect a debt, from “us[ing] or threaten[ing] the use of force or violence to cause physical harm to a debtor or to the debtor’s family or property.” Or.Rev.Stat. § 646.639(2)(a). It also prohibits a debt collector from “us[ing] profane, obscene or abusive language in communicating with a debt- or or the debtor’s family.” Id. § 646.639(2)(d). Yet, by concluding that the entire Oregon UDCPA is preempted, the majority inexplicably finds these statutory provisions “inconsistent” with the HEA and its implementing regulations.

How can that be? All that the HEA says about debt collection is that the guaranty agreement shall “assure that due diligence will be exercised in the collection of loans insured under the program.” 20 U.S.C. § 1078 (c)(2)(A). There is nothing inconsistent about requiring a guarantor to use “due diligence” in attempting to collect the loan but telling the guarantor to refrain from using violence or abusive language in doing so. “Due diligence” does not mean collection by any means' possible-no matter how abusive and unfair. In fact, in the federal Fair Debt Collection Practices Act (FDCPA), Congress explicitly concluded that “[mjeans other than misrepresentation or other abusive debt collection practices are available for the effective collection of debts.” 15 U.S.C. § 1692 (c). Accordingly, Congress enacted legislation “to eliminate abusive debt collection practices by debt collectors ... and to promote consistent State action to protect consumers against debt collection abuses.” Id. § 1692(e). There is no exception for pre-litigation student loan debt collection. In light of Congress’s express pronouncement in the FDCPA that abusive and misleading debt collection practices are not necessary to effective debt collection, I do not understand how a state statute prohibiting violence, abusive language, and misrepresentations in collecting debts can be deemed inconsistent with Congress’s desire effectively to collect unpaid student debts under the HEA. The purpose of the HEA is to provide deserving students with loans so that they are able to attend college. Preserving the solvency of the program is a necessary means to that end. Abusive and misleading pre-litigation practices by debt collectors attempting to collect student loans in no way further these goals, and are certainly not required or encouraged by the GSL regulations. The effect of today’s majority opinion is to free institutions not subject to the FDCPA but which collect student loans from regulation against violent or abusive practices and to free those subject to the FDCPA from state borrower remedies that are intended to discourage such practices.

USA Funds “ha[s] not demonstrated that preemption of [Brannan’s Oregon UDCPA claims] was the ‘clear and manifest purpose of Congress.’ ” Keams, 39 F.3d at 227 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 , 67 S.Ct. 1146, 1152 , 91 L.Ed. 1447 *1270 (1947)). We should reverse the district court’s ruling that finds complete preemption.