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Telephone Consumer Protection Act

What is a litigation firewall?

In a general sense, a litigation firewall could be any effort to protect your business from the multimillion-dollar litigation industry enabled by the Telephone Consumer Protection Act. The most obvious and direct way to do so would be to purchase software or make a business alliance with a company that can help you blacklist any litigators. Experienced marketing attorneys and industry professionals alike agree that robust and remarkably effective solutions against predatory litigation are essential.

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.

Are purely informational texts exempt?

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.

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.