Consent

As it governs debt collection practices, the Fair Debt Collections Practices Act (FDCPA) provides a number of rules that telemarketers who collect debt as third-party debt collectors must follow: 

No. Push notifications are user-controlled, making it difficult to argue that the Federal Communications Commission (FCC) should consider them to be a “call.”

This specific scenario has not been addressed by the Federal Communications Commission (FCC). In these sorts of circumstances, the FCC looks at a number of factors to determine who is responsible for user-initiated messages such as: Who decides when the text is going to be sent? Is it being used to do an unlawful activity? Are you spoofing? The issue is control. In this case, the fact that the consumers are going to be the ones sending the message and are choosing who receives the message makes it seem like the consumer should be responsible.

Yes—as long as you can meet the implied express consent standards. Courts have generally accepted the argument that a consumer listing their phone number on a credit card or loan application constitutes giving consent to be contacted at that number for issues involving that account.

Yes, some state telemarketing laws prohibit you from making calls during a state of emergency. However, it is less clear when it comes to texting. Other than the 13 states that treat text messages separately, it is not clear whether a regulator would say texting is a call. A lot of state-level statutes about states of emergency are worded in such a way that calls are explicitly prohibited while texts are not. But as a practical matter, it is best not to call or text during states of emergency.

Following the Supreme Court's Facebook v. Duguid decision, AI texting systems are not likely to be considered autodialers.

Yes, just as with telemarketing regulations for phone calls, there are state-specific laws covering texting. 15 states have their own laws regarding text messaging. State-level laws on texting are typically more complex and stringent than federal-level laws. However, consent is still always the key to compliance.

Purely informational texts follow the same implied consent rules as delivery and service notifications. However, if any part of your informational text could be considered marketing and you are using a device that meets the current standards for what constitutes an automatic telephone dialing system (ATDS), you would need express written consent. Therefore, best practices are to get express written consent even for informational texts.

Yes, you can have multiple campaigns with their own opt-out requirements, but you should make it very clear to consumers how to do it. For example, text “STOP A” to stop receiving messages from campaign A vs. “STOP B” to stop receiving messages from campaign B. It is also best practice to offer an inclusive opt-out option such as “STOP ALL.”

Yes, opting out of one should result in opting out of both unless you’ve made it clear that there are different requirements. However, you can clarify with the consumer whether they are seeking to opt out of one particular program, or all calls and texts to the number.