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Telephone Consumer Protection Act

What is the potential liability of marketing texts that offer consumers discounts or benefits for forwarding offers to their friends?

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.

What about AI texting?

There is no specific Federal Communications Commission (FCC) guidance or Telephone Consumer Protection Act (TCPA) legal precedent regarding artificial intelligence (AI) texting systems. However, texts sent by such a system must comply with the TCPA. Automated texts of any kind, sent from autodialing or AI software, require consent.

There is an ongoing TCPA lawsuit related to messages sent by a hotel’s AI-powered digital concierge. It could provide some legal precedent as to how AI texting will be litigated and regulated under the TCPA.

If a consumer wishes to opt out of receiving marketing texts from campaign A but still wants to get texts from campaign B, are multiple opt-out options allowed?

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.”

If my consent language covers both calls and texts, does a consumer opting out of one mean they have opted out of both?

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.

Am I legally required to let consumers know how to opt out?

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).