Consent is the cornerstone of compliance with the Telephone Consumer Protection Act (“TCPA”). It is imperative that business and marketing teams have a strong understanding of this before leveraging text messaging or automated calls into their marketing campaigns. Similarly, it is critical to understand when prior express written consent is required, if any exceptions may apply to your text messaging campaign practices, the importance of documenting consent, and other best practices that can be leveraged for obtaining prior express written consent in an online environment.
Understanding the TCPA
The TCPA was enacted in 1991, amending the Communications Act of 1934, and sought to restrict unwanted telephonic solicitations from companies. The TCPA grants the Federal Communications Commission (“FCC”) the authority to develop rules related to telemarketing, the use of automated telephone dialers, artificial or prerecorded voice messages, SMS text messages, and fax machines.
Many businesses leverage text messaging or SMS marketing to reach out to current and potential customers and while this can be a great marketing tactic, careful attention should be paid when using SMS text messages to communicate with customers, even where a preexisting business relationship exists, as there are steep penalties involved for initiating improper text messages or calls. In fact, the statute provides for damages in the amount of $500 per improper text message, which can quickly add up when you are sending them out en masse. With these hefty fines, compliance with the TCPA should be taken into consideration before embarking on any SMS text messaging campaign.
Affirmative, Written/Digital Consent & Opt-Out
Under the TCPA, you must obtain written or digital consent before sending promotional SMS text messages. As such, you always want to be sure your teams are obtaining affirmative written consent before beginning any SMS text messaging marketing campaign. It is mandatory to obtain this affirmative written or digital consent before sending promotional SMS text messages.
In Vandenberg & Sons Furniture, Inc. v. Alliance Funding Grp., a California corporation that provided financing for equipment leasing to small businesses faxed a Michigan corporation that is in the furniture business in 2012. No. 1:15-CV-1255, 2021 WL 222171 (W.D. Mich. January 22, 2021). At the bottom of the two-page fax, there was an opt-out notice that provided that the fax recipient with instruction on how to opt out of future fax advertisements. Id. Over the next four years, the equipment leasing business sent out hundreds of thousands of fax advertisements to the furniture business and others. Id. The Western District of Michigan recently held that as the equipment leasing business failed show any evidence it had obtained affirmative written consent from the individuals it sent faxes to, a class potentially worth over a $100 million dollars could be formed. Id.
Best SMS Practices to Follow for Text Marketing
As stated, obtaining (and documenting) proper consent is foundational. One recommendation for obtaining affirmative consent is to present a just-in-time notice at the point of collection of a telephone number. A small dialogue box should confirm that the individual is authorizing the collection of the phone number and consents to be contacted by text messages. The TCPA recommends marketers retain the consent for a minimum of four years. This affirmative consent needs to be duly signed by the customers, which can be written, digital or a simple opt-in for a campaign. Moreover, under the TCPA, customers must also be provided with an option to opt of out any such marketing campaign, being presented with the choice of continuing to receive messages.
To best align with TCPA guidelines, here are some additional best practices that your business should be following when undertaking text messaging as part of your marketing campaign:
- We recommend mentioning the details regarding opting out of your campaign at least once every month. Include a small message addressing the same at the end of your marketing text.
- Look into the opt-out requests and process them as soon as possible (it is advisable to acknowledge in real time). This provides your customers with a sense of reassurance and makes your activities more organized.
- Along with the details regarding opting out of your campaigns, it is important to include contact details for your customer care services at least once every month. If the details are precise, you can add them to every marketing SMS you send to your customers.
- Always keep a track of an opt-out request once it has been received. Ensure all the procedures are carried out efficiently and the concerned customer is successfully opted out of receiving your messages. Also, inform the customer through a final SMS, confirming the fact that they will stop receiving similar messages from you in future. It is also advisable to provide details of opting back in for your SMS campaign, in case the customer feels the need to do so in future.
Like many areas of compliance, building an infrastructure within your organization to address the new and evolving legal landscape surrounding the use of text messages under the TCPA can help your business stay ahead of the curve and prevent costly litigation. Being proactive and building robust and scalable policies into the foundation of your organization will help mitigate legal risk. Our TCPA team has handled numerous class actions litigations in this space and can help your business navigate this complex area of the law.
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