Most people run a text marketing program completely free of incident. By being here, reading this guide, you’re already taking the right educational steps. Knowing exactly what you can and can’t do is all it takes to stay out of a sticky situation.
But sometimes, people slip up. So it’s important to understand what can potentially happen should you violate TCPA protocol. And not only are their legal repercussions, but there are also potential repercussions from your customers.
What Is the TCPA?
The TCPA is the Telephone Consumer Protection Act. It’s a piece of federal legislation that protects consumers’ right to privacy and is designed to cut back on annoying—and more specifically unwanted—telephone calls and texts.
What Is Regulated Under the TCPA?
Originally, the TCPA was created to regulate calls and faxes. Later, the FCC and courts decided that when Congress wrote “calls” in 1991, it must have meant to include “text messages.” At SimpleTexting, we give you several options when it comes to what number you can use. Some of these options allow you to text and call from the same number. If you plan on doing this, it’s helpful to know the TCPA regulations that apply specifically to phone calls:
Do Not Call Registry
Have you ever wondered whether the Do Not Call List is a real thing, or whether it’s just a polite way of asking telemarketers to leave you alone? We’ve got good news: it’s real! The TCPA created a National Do Not Call Registry and prohibited telemarketers from calling anyone on it, subject to certain exceptions (like having the consumer’s consent to call).
Robocalls and Automated Dialing
As cool as it sounds, a robocall isn’t actually a call from a futuristic robot. It’s not clear when a call or text is made from an autodialer—some very smart judges in different appeals courts across the country have very different interpretations of what it is, so now the Supreme Court has agreed to settle the definition (until Congress changes it again).
Specifically, the TCPA defines an autodialer as any equipment which has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator and dial those numbers. This applies to both calls and text messages. Telemarketers can use automated dialing to contact thousands of consumers at once.
The vague definition of what qualifies as an autodialer is not currently settled among federal courts, so it is important to err on the side of caution when sending any message, including texts, with any type of automated technology, and ensure each message is being sent with the prior express consent of the recipient.
Pre-recorded Voice Messages
It’s not illegal for a business to call customers for marketing purposes. However, a real person needs to be on the line. It’s a violation of the TCPA to use pre-recorded voice messages without that person’s prior express consent to be called.
What Constitutes a TCPA Violation?
At first, the TCPA may sound quite scary and intimidating. But remember, it’s only designed to cut down on scammers and nuisances. Below are the three main TCPA violations every company should be aware of. Additional regulations apply to debt collectors.
Unsolicited Automated Calls or Texts to Cellphones
If a business, without prior express written consent, calls a cell phone using automated dialing or a prerecorded message for marketing purposes, that constitutes a TCPA violation. As we’ve touched on, if someone has given you express written consent, you can text them.
Unsolicited Prerecorded or Artificial Voice Calls or Texts to Residential Phone Numbers
In order for businesses to call residential numbers with artificial or prerecorded voice technology, they also must have the prior express written consent of the called party.
Calls to Those Listed on the Do Not Call Registry
It’s illegal to call anyone who has opted-out of phone calls by registering on the federal Do Not Call Registry, subject to certain exceptions, such as the called party’s prior express invitation or an “established business relationship”. If the telemarketer hasn’t done business with the consumer in the last 18 months, then they do not have an established business relationship.
What Are the Penalties for Violating the TCPA?
Penalties—in the form of “statutory damages”—associated with violations of the TCPA can include $500 per each violation and up to $1,500 per willful violation. It’s not uncommon to see settlements in the tens of millions of dollars for class action TCPA lawsuits. In addition to private citizen lawsuits, the FTC and FCC both have authority to bring actions for violations of the TCPA, as do individuals and state attorneys general on behalf of citizens of their states.
What Are Some Real-World Examples of TCPA Violations?
There are several notable cases that highlight how important it is to follow TCPA regulations, whether you’re a brand, or a marketing agency working on behalf of a brand.
In 2017, Dish Network had to pay approximately $341 million in damages for violating the TCPA. Members of the class action suit alleged that Dish had knowingly called numbers on the Do Not Call registry. Dish tried to argue that their telemarketing provider, Satellite System Network, was at fault, not them. The jury rejected this argument and awarded $400 per call.
In 2013, Domino’s Pizza agreed to pay nearly $10 million dollars to settle a class-action lawsuit. Similar to the Dish Network case, the court found that consumers had received unsolicited marketing calls. Additionally, it was found that Domino’s sent promotional texts without receiving consent first.
Alright, now that you have enough information to pass the Bar exam (…kidding) let’s learn about exactly when these laws start applying to you.
How Can You Remain TCPA Compliant?
We’ve already touched on this, but it’s still worth repeating. To remain TCPA compliant you must practice express consent. When it comes to text marketing, it’s imperative for TCPA compliance that the recipient of a message has given you prior express written consent in response to a clear and conspicuous disclosure that they are agreeing to receive (a) marketing/promotional messages from you (b) sent by an autodialer and (c) their agreement to receive the message is not conditioned on any purchase. Fortunately, we provide you with some tools to help you obtain TCPA-compliant express consent if you choose to secure consent from your customers via the Simple Texting platform.
Online forms, with the necessary compliance info alongside them, are a simple way to make sure you’re in the clear. Our embeddable web forms can be added to any website; be sure to maintain your evidence of consumer consent, of course. We even provide the option of enabling double opt-in, which requires the user to respond Y or Yes to confirm that they want to subscribe.
If you like to keep things old-school, you can always use a printed form if your customers are available to fill them out in-person. Just make sure to store all the paperwork safely in case you need to refer to it later.
And—that’s it. Yes, really. Our compliance guide is done! Go out there and send some legal text messages. Or read on into the conclusion where we’ll cover the most important points.
💡 Key Takeaways:
- Be sure that when a contact subscribes to your texts, they have given prior express written consent to receive messages in response to a clear and conspicuous disclosure that the messages are (a) marketing/promotional messages, (b) sent by an autodialer, and (c) their agreement to receive the message is not conditioned on any purchase.
- Heavy fines ranging from $500-$1,500 per violation are the most common punishment for non-compliance.
- Unsolicited calls or texts qualify as TCPA violations.
Disclaimer: Please note that this advice is for informational purposes only and is neither intended as nor should be substituted for consultation with appropriate legal counsel and/or your organization’s regulatory compliance team.
Previously: Text Message Laws & The Groups Who Make Them
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