Overseen by the Federal Communications Commission (FCC), the Telephone Consumer Protection Act (TCPA) of 1991 is the primary federal law governing telephone solicitations, including all manner of telephone, fax, and text message solicitations.
The Supreme Court's decision in Facebook v. Duguid finally set a consistent precedent for how to interpret the TCPA's definition of an ATDS: “The capacity to use a random or sequential number generator to either store or produce phone numbers to be called.” However, the practical application of this definition to specific dialers can still be confusing.
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.
Following the Supreme Court's Facebook v. Duguid decision, AI texting systems are not likely to be considered autodialers.
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.
Yes, you can send one final message confirming the opt-out and offering information on how to opt back in. However, this final message cannot contain any sort of marketing. The Federal Communications Commission (FCC) recommends you send this message no later than 5 minutes after the opt-out occurs.
It is not legally required to provide customers with instructions on how to opt out. But it is a very strongly recommended best practice to provide customers with this information. If you don’t do so, it is possible that people will opt out with their own legally sufficient language that is not recognized by your system, leading you to continue to send messages or make calls which now violate the Telephone Consumer Protection Act (TCPA). You need to be able to recognize and honor opt-outs, so always include a simple opt-out instruction (“Reply STOP to Opt-Out” for example).
You do not need consent for the initial automated response if the message is consistent with what your direct response offer has promised. The message must be sent immediately, containing only the requested information and nothing more. Any additional marketing messages would require consent.