Friday, March 14, 2014

Do you know about TCPA?

Changes to the law may affect your messaging

If you are making telephone calls or using text messaging for marketing, then you should be aware of changes to federal law that went into effect on October 16, 2013.

Consent

The most important change to the Telephone Consumer Protection Act (TCPA) affects people making telephone calls or using text messaging for commercial solicitation. Changes to the law that went into effect in October state that recipients must give prior express written consent before you can, for marketing purposes:
  • Call a residential line using a pre-recorded message
  • Call a cell phone using an auto-dialer
  • Send a text message (which includes an email sent to a cell phone)
It is important to note that the systems of virtually all call centers qualify as “auto-dialers” thereby requiring express written consent before making such a call to a cell phone. 

For non-commercial, informational texts (such as those by or on behalf of tax-exempt non-profit organizations, those for political purposes, and other noncommercial purposes, such as school closings) your consent may be oral.[1]

Note that in the past, the TCPA gave an exemption to telemarketers with an "established business relationship". The "established business relationship" exemption has been eliminated in the new law.

What type of signature is required for “express written consent”?

The required signature may be obtained in compliance with the E-SIGN Act, including via an email, website form, text message, telephone key press, or voice recording. See 47 C.F.R. at § 64.1200(f)(8)(ii). [2]

What is the language of the consent that is required?

“Prior express written consent” is a signed written agreement that clearly and conspicuously discloses to the consumer that: (a) by signing the agreement, he or she authorizes the seller to deliver, to a designated telephone number, telemarketing calls or texts using an automatic telephone dialing system or an artificial or prerecorded voice; and (b) the consumer is not required to sign the agreement or agree to enter into it as a condition of purchasing any property, goods, or services. It is important to note that the consent must specifically refer to the marketer that will be contacting the consumer, and cannot just consent to receive marketing messages from unnamed marketers. The form that collects the telephone number must not prepopulate the telephone number.

What does this mean for you?

If you are using SendTree strictly as a communication tool, and not as a marketing tool, then this probably doesn't affect you. For example, if you are sending out reminders for soccer practice, yoga class, or cancellations, and your message recipients are expecting your messages (i.e., they opted in, or they asked to be on your list) then TCPA shouldn't apply.

But if you are using SendTree's voice or text message service as a marketing channel, then you need to understand where your responsibilities lie with respect to having the recipient's consent. There are two possible ways a person can get on your SendTree list:
  1. You entered or uploaded their contact information
  2. The person opted in on their own
In the first case, you supplied the person's contact information yourself, and it is your responsibility to have their written consent on record. If you are challenged for sending a message without consent, the penalties for being in the wrong can be steep. A single incident has a minimum fine of $500, and could be as much as $1500. Each non-consenting recipient may count as an incident, meaning your minimum liability could be the number of message recipients times $500.

In the second case, if the person opts in, you have a record of their opting in on the SendTree website. Specifically, you can see who has opted in under the recipients tab in your SendTree account. Those having a "person" icon to the left of their name are those who have joined your list on their own.

Further reading

These changes to the law apply regardless of which text message service provider you use. It is important to understand your responsibilities in any case.

SendTree’s User Agreement has been updated to clarify our responsibilities with respect to these new rules. Please review the User Agreement under the section titled "Use of Unsolicited Messages".

For additional information on the TCPA, Wikipedia provides a summary of the TCPA. The FCC website has a useful summary concerning unwanted texts, and they also provide a consumer guide (pdf) which outlines in plain terms what should be expected of an autodialed text or voice call. You may also read the U.S. code on Restrictions on Telemarketing, Telephone Solicitation, and Facsimile Advertising.

[1] http://www.fcc.gov/guides/spam-unwanted-text-messages-and-email
[2] http://www.ecfr.gov/cgi-bin/text-idx?SID=4be877499b3e508131313bf6e7933656&node=47:3.0.1.1.11&rgn=div5#47:3.0.1.1.11.12