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Text Message Compliance

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.

Do I need to make special considerations for declared states of emergency?

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.

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.