Posted by Chris Alarie on Wed, 05/20/2020 - 15:44
In the world of telemarketing, different dialing methods carry different amounts of risk relating to potential Telephone Consumer Protection Act (TCPA) violations. Text platforms are one of the riskiest of all, in large part because the telemarketers who use them are often not aware of the risks.
Numerous Federal Communications Commission (FCC) Declaratory Rulings have reaffirmed that text messages are subject to the same TCPA restrictions as phone calls. Meaning, for example, automated text messages would be treated the same as phone calls placed from Automatic Telephone Dialing Systems (ATDS). The courts have also consistently held that a call is a text and a text is a call under the TCPA.
Text messaging as a format also carries very specific risks for TCPA lawsuits. Many consumers who receive a text from an unknown source may assume that the text was sent automatically, in bulk, rather than manually, even when that is not the case. Also, unlike a phone call that a consumer might just decline, a telemarketer’s text message content remains on the recipient’s phone until deleted. Even messages sent with proper, legal consent can be a liability for callers if that consent is not properly documented and can’t be proven in court.
Risks for Platform Users
Businesses who use automated text messaging systems in order to conduct telephone solicitation may find these systems to be particularly useful, powerful tools for reaching consumers. But they would be mistaken to assume that these platforms necessarily provide them the tools for TCPA compliance.
The best way to avoid TCPA violations while using an automated text messaging platform is to come up with your own TCPA compliance solutions and to maintain your own best practices independent of the platform. Among the most important are:
- Time-Based Restrictions
Telemarketers should only send messages between 8 a.m. and 9 p.m. according to the recipient’s local time. Some states have laws mandating stricter calling and texting time restrictions. Do not assume that your automated text message platform will heed these restrictions for you.
- Reassigned Numbers
With approximately 100,000 mobile phone numbers reassigned by wireless carriers every day, it is absolutely essential to check your data for reassigned numbers. Phone numbers may change, but the risk of TCPA liability is inevitable.
- Disconnected Numbers
While a phone call placed to a disconnected number will likely produce a message informing the caller that the number has been disconnected, a text message sent to a disconnected number is unlikely to do so. In order to avoid wasting time and resources, you should have a disconnected number solution.
- Internal Do Not Call (DNC) List
You are required by law to keep a company-specific Do Not Call list. You should immediately honor the requests of consumers who ask to be placed on your internal Do Not Call List. You are also required by law to keep an updated internal Do Not Call policy and must provide such policy to your clients upon request.
- Always include an easy opt-out instruction
“Reply STOP to unsubscribe,” for example. This helps force the consumer to opt-out in a manner your system can automatically recognize and honor. Revocation of consent is covered in greater detail below.
- Don’t text known litigators and serial plaintiffs
The easiest way to avoid a lawsuit is to not contact the people who are most likely to sue. TCPA litigators and professional plaintiffs can find their way onto your lists. The best defense is to remove these predatory individuals from all contact lists before reaching out.
Text message campaigns can be very tricky in terms of how explicit and specific they are in obtaining consent. The following case study illustrates how a seemingly good faith attempt to obtain consent can fall short of the necessary standards and result in a costly class action.
In 2018, a plaintiff brought a TCPA class action against a department store chain over text messages sent as a part of a coupon promotion. After reading an ad about the promotion, the plaintiff texted “SAVE” to a five-digit code and received three text messages. The first welcomed her to the store’s mobile sales alerts, the second provided the coupon that had been advertised, and the third (sent approximately a month after the previous two) provided a second coupon. She claimed that she did not explicitly sign up for the sales program and only consented to receive the first coupon, causing the additional coupon to be a TCPA violation sufficient enough for the class action.
Even the sitting president is not immune from TCPA litigation resulting from an allegedly improperly conducted text message campaign. Donald Trump’s presidential campaigns have twice been sued for TCPA violations relating to messages sent through automated text messaging systems. The first stemmed from alleged violations committed by his 2016 campaign. The second—a class action—originated in messages sent about a re-election campaign rally.
Risks for Platform Providers
Text message platform providers also face TCPA risks. The primary source of risk for platform providers is vicarious liability. Vicarious liability is defined as an attachment of responsibility to a party for harm or damages caused by another party in a lawsuit or civil action. Text platform providers could potentially be found vicariously liable for TCPA violations committed by users of their platforms. In some circumstances, platform providers have even been found directly liable for violations committed by their users. Because the FCC and courts have repeatedly declined to shield text message platform providers from liability, platform providers need to have their own TCPA compliance solutions.
In 2009, a text message platform petitioned the FCC for a declaratory order that the FCC should evaluate TCPA liability for text platform providers such that “liability will attached only if a text broadcaster ‘demonstrates a high degree of involvement in, or actual notice of, the unlawful activity and fails to take steps to prevent such transmissions.’” This is the standard that the FCC had held for fax broadcasters.
Seven years later, the FCC finally responded, releasing an order denying the petition. It explained that, according to its 2015 Omnibus Declaratory Ruling and Order, “text broadcasters can be liable for TCPA violations based on the factors discussed in that decision.” Among the reasons it cited for this decision were concerns about “the extent to which a person willfully enables fraudulent spoofing of telephone numbers or assists telemarketers in blocking Caller ID, by offering either functionality to clients,” or whether the text broadcaster “has knowingly allowed its client(s) to use that platform for unlawful purposes.”
Similarly, an educational technology company that, among other things, provides texting communication services for schools petitions the FCC for an Expedited Declaratory Ruling. After being sued for TCPA violations relating to its service, filed a petition with the FCC, requesting clarification that all automated, informational phone calls and text messages sent by educational organizations are sent for emergency purposes and are thus allowed by the TCPA. The FCC declined to exempt all informational calls made by educational organizations from the TCPA but clarified that schools may deliver messages without consent if related to unexcused absences and emergencies such as weather closures, health risks, threats, or fires.
As with calling, the most important procedure for avoiding TCPA violations with automated text messages is to be diligent in obtaining and documenting proper consent. As defined by the FCC, prior express written consent is a written agreement between the sender of the message and the receiver of the message that clearly authorizes the sender, among other things, to deliver “advertisements or telemarketing messages using an automatic telephone dialing system.” This type of consent must specify the phone number to be contacted and must also include the receiver’s written or electronic signature, which may be a signed piece of paper, or simply a button press affirming the agreement. You must also disclose that consent is not a condition of purchase.
Best Practices for Obtaining Consent
Marketers can call/text using an ATDS provided they have proper consent. For marketing purposes, you must have express written consent. The written consent may be an e-signature or button press, but it must include the following disclosures:
- You must disclose that the calls or texts will be sent for marketing purposes.
- You must disclose that the calls or texts will be or may be sent using an automatic telephone dialing system.
- You must indicate that consent to receive the calls or texts is not a condition of any purchase.
- You must identify which brand will call and which number will be called.
- You should always remind them how to opt-out.
Frequently Asked Questions
Text messaging compliance is a particularly complex aspect of TCPA compliance. While the previous sections should provide a good overview, some potential questions may slip through the cracks.
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 strong 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 which now violate the 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).
In its 2015 Declaratory Ruling, the FCC concluded that a “called party may revoke consent at any time and through any reasonable means.”
If a consumer opts out, can I send a confirmation message?
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 FCC recommends you send this message no later than 5 minutes after the opt-out occurs.
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.
Are there different rules if you are texting Business-to-Business (B2B)?
Marketers always need prior express written consent to text wireless numbers, regardless of whether they are used for personal or business purposes.
One particular risk for B2B calls is dual-purpose phone numbers. Some serial litigators use their DNC-listed, landline phone number for both residential and business purposes. They have filed dozens of TCPA class actions against sellers and marketers who call them at their dual-purpose number under the belief that they are contacting a business number and making use of the TCPA’s business-to-business exceptions.
What are the consent rules for service and delivery notifications?
You only need the consumer to provide you with their phone number for the purpose of receiving service or delivery notifications. This constitutes implied consent. As long as no part of the messages that you send are any form of marketing, you should be complying with the consent rules. The number must have been provided to the company in the normal course of business without conditions on use and the messaging must cease when the number is reassigned or the consumer opts out.
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, you would need express written consent. Therefore, best practices are to get express written consent even for informational texts.
Examples of Informational Text Messages:
- Delivery notifications
- Public utility service notifications
- Informational texts from non-profits
- Informational texts from schools
Are emergency texts exempt?
Legitimate emergency texts with no marketing component do not require consent.
Examples of Emergency Text Messages:
- Service interruptions
- Medical emergencies
- Weather events
- Public safety events
- Anything that constitutes a legitimate emergency and does not include marketing
Are there state-specific telemarketing laws related to texting?
Yes. 13 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.
Also, please note that when congress passed the TCPA it explicitly said it did not preempt state laws. You must follow both federal and state laws governing calling and texting.
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 to limit the use of text message campaigns during states of emergency.
What are the risks of Peer-to-Peer texting under the TCPA?
The FCC authority says that if it is a manual call or manual texts that it does not count as an automatic telephone dialing system. However, because Peer-to-Peer texting can be one-to-one, or in some cases, one-to-many, there is some debate as to whether those texts count under the definition of an automatic telephone dialing system. Generally, as long as the consumer is requesting to be contacted and you only ever respond to the consumer, it should fall under the same rationale as on-demand messages.
Do I need consent for Direct Response Text Marketing?
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.
What about AI texting?
There is no FCC guidance or TCPA legal precedent regarding artificial intelligence texting systems specifically. 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.
In a 2018 case, the plaintiff alleges that she received a text message that she did not consent to receive shortly after checking into a resort. What makes the case notable is that she received the message from an artificial intelligence SMS platform. This case is ongoing, but it bears watching as it is believed to be the first TCPA class action case involving an artificial intelligence texting platform.