The TCPA Has Changed – Your Mobile Marketing Just Did As Well

Did I agree to let you call me?  I think not.  I'm hanging up and calling my lawyer, now!

Did I agree to let you call me? I think not. I’m hanging up and calling my lawyer, now!

Your use of text messaging just got a little bit more risky.  New changes to the TCPA went into effect that you need to pay attention to.  While some may think the Telephone Consumer Protection Act (TCPA) only applies to those pesky telemarketing calls you get during dinner, they are wrong.  The TCPA addresses any automated telephone equipment and very plainly includes text messaging.  So, what did the changes do to you.

They just created a possible bottom line hit, is what they did.  Let’s look back at the fines that some companies have faced in this space under the less stringent provisions:

While the TCPA is meant to prohibit unsolicited marketing messages, it is much more expansive than that.  Unless you are telling someone about imminent present danger to them, you are sending something that is covered under the TCPA.  A coupon for a 12” pizza is not an emergency.  Cramming for exams notwithstanding.  Even a birthday wish without any other content will be problematic.

New Changes, Greater Risk

Under the previous provisions of the TCPA one could fall back on an “established business relationship” and send whatever they wanted to their customers.  Under these new rules, there is no exception.  Welcome to the new world.

In order to send any type of text message to your users you will need their express written consent, and with the new changes it becomes even harder to get that.  Now you need “unambiguous written consent.”

Fines under the TCPA for actual voice calls were pretty impressive, but with text messaging the possibility of truly gargantuan fines are greater.  Why?  Because sending automated text messages to every mobile number you have is so much easier.  You don’t need someone on the other end of the phone.  Each of those messages carries with it a $1,500 possible price tag.  Each one.  You thought your text message plan was expensive?

Unambiguous Written Consent

We don’t know exactly what this will be, to be honest.  We need a few enforcement actions or lawsuits to really define it.  What I think it includes is some type of overt display of what you are agreeing to.  It might be enough to have the standard “text and data costs may apply,” but probably not.

What may work is this: “by providing us your mobile number you are agreeing to us sending you messages related to our products and services.  Standard text charges may apply.”  Some overt statement that says you will be sending them stuff.

Once you have that type of notice you then should comply with the provisions of e-sign.  This is a two-step process.  The first is an authentication step.  You have to authenticate that the person entering into the agreement is who they say they are.  Then you have to record what they did.  Or at least prove your process that there is no way they could have bypassed the notice.  This requires storing the transaction somewhere.

The burden of proof under the TCPA is not on the plaintiff.  It is on you.  You are guilty until you can prove your innocence.  The TCPA, in my mind, assumes you did not have consent.  All of your processes are going to be challenging, including the language you use.  There is going to be a minimum required.  With price tags of a quarter billion dollars looming, you don’t want to be defending the minimum.  Do more than the minimum.

Aggregators Can Be Your Friend

Aggregators maintain very close relationships with the carriers.  Carriers want to avoid the anger of their customers getting these messages.  The aggregators want to maintain good relations with the carriers.  Both are incented to make sure you are doing it the right way.  Their review will probably be more stringent than then minimum required.  Listen to them both.  They will help you avoid trouble yourself.

Exceptions

The only exception now (after business relationship left the building) is an emergency type message.  There is a good policy argument here for this exception.  Why should I worry about your consent when I am texting you about a threat to your life.  The TCPA doesn’t specifically restrict this to life threatening situations to my read.  So, if you want to notify a user of something that is a threat to a user, such as identity theft, or a pending depletion of all their monies from an account, I think you might be ok.  That being said, I would still recommend some sort of disclosure when your user gives up their mobile device number.  Do not rely on number harvesting from other programs, give your users some ability to give you their numbers.

BIGGER EXCEPTION AND WHAT YOU SHOULD BE DOING

If you are contacting users on mobile devices, why aren’t you using built-in functionality that comes with the mobile operating system.  Push notifications on iOS for instance.  Or just your own app.  In either case, the TCPA is silent on this.  This may be because the regulators haven’t caught up to it yet.  Though, because users are in control of this setting, there is a good argument that they have definitely agreed to it.  I have heard tell that there are still some ways to get around this.  If you are doing that, be very restrictive in use of that power.  The TCPA will catch up or me will get a different law now that the government is back in business.  Perhaps the Mobile Consumer Protection Act (MCPA).

New Economy, Old Rules

The TCPA was enacted in 1991.  There are lots of experts out there on the telephone based part of this.  If your company has done any sort of telemarketing you will have legal advice galore on it.  If you are a small start-up, you do not have that advantage, and this law will come as a surprise.  You need to pay attention to it as the monetary liability is enough to suck down your entire company.  Do you have enough funding to pay off a $250 million dollar judgment.  I think not.

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