Most likely everyone has received a telemarketer call or two in the past. Perhaps it was your favorite brand of coffee or running shoes—companies you are most loyal to—and maybe they had a great offer you couldn’t pass up. In that case, you were likely excited to have received that message with their promotional offer.
But if you received a call from that Whats-Its-Name brand of something you’ve never purchased, you may have been annoyed. And if that call or text message was sent without your consent, it may have been a Telephone Consumer Protection Act (TCPA) violation.
Did you know that the TCPA rules that apply to phone calls may also apply to text messages?
In many cases, they do.
Before you run your next campaign, familiarize yourself with the restrictions and avoid unwanted consequences from violations.
Telephone Consumer Protection Act
In case you haven’t heard of it, the TCPA was enacted in 1991. It was designed to protect consumers by restricting unwanted telephone solicitations initiated using automated equipment, such as automatic dialing systems, recorded messages, and fax machines. It also prohibited companies from calling residences before 8 AM or after 9 PM local time and required them to not call numbers listed on the National Do Not Call Registry.
Today, these calls are commonly referred to as robocalls, but the restrictions are still the same.
To avoid violations, businesses have been required to obtain consent before telemarketing to customers, prospects, or consumers. Those companies not obtaining consent are at risk of penalties which can cost hundreds, if not thousands of dollars or worse.
Consumers looking to stop these unwanted calls have gone as far as suing businesses claiming the solicitation received was without consent. This leaves responsibility for proof to the business being sued.
In more recent rulings, the Federal Communications Commission (FCC), who enforces the TCPA, interpreted text messages as equivalent to robocalls. Because of this, text messages are often subject to the same rules and restrictions. While calls can be ignored and left unanswered, text messages remain stored on the recipient’s phone until deleted, even if unread. This further fueled the argument of extending restrictions to text messages as well.
A case in 2018 cited a retail store that placed an ad for a coupon promotion. Consumers were instructed to text “save” to the advertised number to participate, which the plaintiff did. In return, she received two texts, a welcome message and a coupon, which she expected. When a third text was received a month later, the plaintiff claimed she did not give consent, stating she did not explicitly sign up for a sales promotion program.
So how does a company utilize technology and avoid risk of violating regulations?
Simply put, marketers must start by obtaining consent.
Consent is required before initiating a phone or text message marketing campaign.
There’s no doubt, today’s technology has revolutionized marketing in ways businesses never envisioned when the TCPA was enacted decades ago. Today’s brands have a greater potential reach than ever before thanks to automated systems including phone calls and text messaging. However, a balance between protecting consumers and marketing innovation means understanding restrictions and complying with the laws in place.
According to the FCC, prior written consent is a written agreement between the sender of the message and the receiver of the message.
To avoid TCPA violations, businesses must not only be diligent about obtaining consent, they must also document it and retain such records in the event that proof is required. And the rules are the same, regardless if the recipient is a consumer or the wireless number is used for business.
Best Practices & Compliance Solutions
Marketers should not only follow best practices in obtaining consent, they should also consider establishing their own internal policies in handling special circumstances or exceptions. Here are some examples of best practices.
- Written consent should be detailed and thorough.
- Consent should clearly state the company and/or brand that will be the sender of the telemarketing communication and note the method, such as automated phone calls and/or text messages.
- Documentation should include the phone number provided by the recipient at the time consent was given.
- Electronic consent must require the recipient to consciously choose to opt-in by selecting a button or checking a box authorizing participation.
- Consent must also include the recipient’s signature electronically if done online, or in paper form if written.
- Documentation should clearly state that the communication sent will be for marketing or promotional purposes, and that participation is not a condition of any purchase.
- An opt-out option must be made available with clear instructions for the recipient to exercise, if they so choose.
- Consent should be date and/or time stamped as part of the supporting documentation.
Defining A Clear Policy For Your Business
Compliance with the TCPA can be complex for marketers especially if text messaging is part of their plan. Experts suggest defining a clear policy. A few categories to consider include:
Hours of Telemarketing Operation
Establish hours for automated phone calls or text messaging and ensure they are within TCPA guidelines as well as within local or state laws. Some municipalities have stricter time restraints than the TCPA has identified.
Be conscious of the location of your recipient to ensure compliance.
Do Not Call Listing
In addition to not calling/messaging numbers that are registered on the Do Not Call Registry, messaging should cease following a recipient who has unsubscribed.
Consider developing an internal list of those recipients that have unsubscribed as your internal Do Not Call List and have a written policy on the procedures should you ever be asked for it.
One of the easiest things you can do is provide clear “opt-out” instructions in your messaging. A simple, “Reply STOP to unsubscribe” comment is universally used and understood. More importantly, it is a common language most automated systems recognize.
Without instruction, the recipient may opt to use alternative terms your system may not understand. If the unsubscribe command fails and you continue sending messages, you will be in violation of the TCPA. The FCC has previously ruled that recipients can revoke consent at any time and using any reasonable means.
Consider having a procedure to validate data, if you do not already have one in place.
On a daily basis, approximately 100,000 numbers are reassigned by wireless providers. Imagine having gained written consent from a recipient only to learn later they gave up their number which was reassigned to someone else. If this new owner does not provide written consent, calling or sending them messages would be in violation of the TCPA.
Then there are the numbers that are simply disconnected. While calls made to disconnected numbers receive a message, text messages do not.
Avoid Known Plaintiffs
While not every recipient will file a lawsuit for TCPA violations, many do. There are hundreds of companies who have already faced class action suits from consumers. Removing these plaintiffs from your system would be highly recommended, if you can identify them.
State of Emergency
State laws often prohibit messaging during a State of Emergency. Since this may vary from state to state, it is best to learn the laws in the area.
Exclusions & Exceptions
With the long list of rules and restrictions, it seems unusual that any exceptions would apply—but there are a few exceptions. Let’s look at these real quick.
If your messaging is considered informational and does not contain any marketing information, it will not be in violation. An example of that would be a service-related communication or a notification of a delivery.
However, once that service or delivery has been completed, communication should cease.
As with informative messages, provided the content does not contain any marketing information and would include legitimate emergency information, it would not be in violation. Examples would include service interruptions, medical issues, or those related to safety.
Individual manual calls made, or texts sent are excluded from the TCPA. Remember, the TCPA only governs calls or messages made using automatic dialing systems. Picking up the phone and calling direct would be compliant.