By: Linda L. Goodman
Did you know that the Telephone Consumer Protection Act (“TCPA”) isn’t only for prohibitions on robocalls? Autodialed text messages are also covered under the TCPA’s scope. There are important requirements for managing and monitoring a text messaging program for your business in order to comply with the TCPA rules and standards.
The first and most important risk is making sure to have a Sufficient Opt-in Mechanism in order to obtain consent for automated text message communications. This means that you must require a consumer to provide consent by opting in to receive text messages. Now, if the consumer agrees to text messaging via an online form or verbally over the phone, you should also use a double opt-in in confirming the consumer’s consent to receive text messaging from your company.
The second risk is obtaining the consumer’s consent directly. The FCC has stated that a consumer’s consent can be obtained through and conveyed by an intermediary, but that intermediary cannot consent on behalf of the consumer. You need to ensure that you are complying with opt-in requirements and being sure to providing easy and detailed instructions to consumers for them to unsubscribe from text messages. This requirement also applies to text group platforms, programs and apps. The consent for all group text members needs to be obtained before proceeding further.
The third risk is being sure to understand the emergency exception to the FCC rules as it applies to the consent requirement. The FCC regulations define emergency purposes as situations affecting health and safety of consumers. If the text message campaign is not directly related to the health and safety of consumers, like emergency weather reports, you must still obtain the proper consent of the consumer before proceeding with the campaign. A notice to a consumer that the offer is ending or that there is limited time left to claim the offer, is never considered an emergency according to the FCC.
The final risk to mention is in providing the consumer a clear and conspicuous disclosure. The FCC rules state that a consumer’s prior written express consent must be a part of a clear and conspicuous disclosure. When obtaining the consumer’s consent, do not use confusing or misleading language in your marketing disclosures, which includes costs and other obligations. Even if there is no cost for the consumer’s sign up and consent for a text message campaign, the disclosure must also identify that standard message and data rates apply pursuant to carrier charges.
When considering text message campaigns, be sure that your compliance team is aware of the rules and risks before implementation. With proper understanding and planning, you will be able to avoid complaints and litigation, which can be very costly.
For more information and to view the full Telephone Consumer Protection Act of 1991, go to the FCC’s website here: https://www.fcc.gov/document/telephone-consumer-protection-act-1991 and here: https://www.fcc.gov/sites/default/files/tcpa-rules.pdf
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This article was originally posted on Cliclaw.com as part of my ongoing efforts to share valuable legal insights. I regularly contribute guest blogs to leading websites in the field of internet compliance. In these posts, I cover a range of topics to help businesses stay compliant in the ever-evolving digital world. You can read my latest guest contributions on Cliclaw.com.
This article is a publication of The Goodman Law Firm and is intended to provide information on recent legal developments. This article does not create an attorney-client relationship, nor should it be construed as legal advice or an opinion on specific situations. This may constitute “Attorney Advertising” under the Rules of Professional Conduct and under the law of other jurisdictions.
Linda L. Goodman is the founder of The Goodman Law Firm, concentrating its practice in internet business and law. Her firm’s clients include Advertisers, Affiliates, Affiliate Networks, and ISP’s.
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