Derek: Hi, everyone, Derek Johnson with tatango.com.
I’m here at Innovista Law, the home of the TCPA Defense Force.
And I’m here with David Carter, a TCPA attorney.
David, one of the questions I get asked is, “Can I text message, my customers?”
And I know that’s a loaded question, but let’s kind of, once and for all, settle
this question.
David: Well, Derek, as you mentioned, it’s a pretty loaded question.
So companies, brands out there can certainly text message their customers, but to do so,
they have to comply with the Telephone Consumer Protection Act.
And that requires them to have gained a certain level of consent from their customers in advance.
Usually, it’s gonna be written consent that can either be through a text message opt-in
or actually like…pen and paper would still work these days.
Derek: Okay, so you can actually get like a text message or complete a web form, that
would be considered written consent.
David: That’s right, that’s right.
But they have to have consent.
And so if the company has just developed a list over time, gotten a bunch of phone numbers
as people checked out of the registered things.
But having gotten people to expressly state that they’re open to receiving text messages,
then they’re not gonna be able to rely on that list.
They’re gonna have to go back and actually have people affirmatively opt-in to receive
text messages.
So most companies can’t just start texting tomorrow.
They’ve got to kinda have a plan in place, they’ve got to build out a database to get
that level of consent before they start the process.
Derek: So if you collect, let’s say business cards you have a…like a bowl, I think fishbowl
they call them, at your restaurant, and people just throwing their business card in there.
You cannot text message those people.
David: That’s right.
Because those people, when they’re dropping in their business card, have not been informed
that they’re going to start receiving text messages.
And so they’re not opting in or providing the necessary levels of consent.
And so if you start, just taking those business cards, then converting them into a list to
start text messaging, you’re pretty quickly probably gonna find yourself with some demand
notices, and some complaints under the Telephone Consumer Protection Act.
Derek: And what are the penalties because…okay, who cares, the TCPA, I’m just gonna do it
anyway.
What kinda penalties could a business see if they violate the Telephone Consumer Protection
Act?
David: It’s pretty stiff.
And this is why people really should be paying attention to the TCPA before they start texting.
The Telephone Consumer Protection Act provides for $500 of minimum statutory damages per
message.
Derek: Okay.
Per text message?
David: Per text message.
And then there’s an option…a potential to go up to $1500 per message if a complaint
can show the company willfully violated the TCPA.
Derek: That’s a lot of money.
David: That’s a lot of money, it adds up very quickly.
I mean, there are demands and cases into millions, hundreds of millions of dollars of potential
exposure.
And so it’s an area that’s definitely attracted a lot of litigation.
In addition you also, beyond, just the potential for a plaintiff to bring a case against you,
you have federal regulatory agencies like the Federal Communications Commission that
can also pursue people that have not…that are texting without the appropriate consent.
Derek: So the government can go after you and consumers can go after you.
David: Yes.
And you also could have state’s attorneys generals, so there’s really…
Derek: So it’s not something you want to do.
David: No.
Derek: Now, texting your customers is okay if you have the right consent.
David: Absolutely.
I mean, there’s a number of great brands, a number of your customers, for example, that
do a great job with texting.
They understand the value it brings to having that consumer engagement, but they make sure
that they have the right consent in place, and that they continue to engage with the
consumer in a way that’s compliant.
Derek: Okay.
One Question I always get asked, because I think people first collect phone numbers before
even engaging in a software provider, thinking about text messaging.
Let’s say you have collected business cards over the course of the last five years, and
you want to now get their consent.
Can you send them a text message asking for their consent?
David: No.
You really would have to get consent from the start, right.
So you’d have to get consent either at a checkout location or maybe on the credit card
Kiosk, you can have people sign up.
Derek: So it has to be when they give the phone number, that’s when you have to get
consent.
And you can’t get consent by sending them a text message later on asking for that consent.
David: That’s right.
If you send the text message after, and to ask for consent, that is itself a violation
of the TCPA, right.
Derek: Yeah, it’s kind of obvious, because you’re asking for their consent.
You didn’t have their consent, originally, to text message them.
David: Correct.
So that would not be the right way to go about doing that.
Derek: Okay.
Anything else businesses should know for texting their customers?
David: Well, I think that…in terms of once you’ve received consent and you’re starting
to send out messages, then working with a vendor like Tatango or someone else that will
help to ensure that the messages you’re sending out are also compliant and that they
don’t run afoul of carrier obligations.
There is a host of…beyond the TCPA, this market has a host of players and best practices.
Derek: Like the CTIA, the wireless carriers.
David: Correct.
And so there’s gonna be a number of steps that you’ll wanna take to make sure that
what you’re saying in your messages, and the frequency with which you’re sending
messages are also in compliance.
As we talk, we always try to distinguish from lawyers’ perspectives, right, the distinction
between what does the Telephone Consumer Protection Act require, as a legal requirement.
And then what are things that people may hear, talking about or discussed that are not actually
firmly legal requirements, but they’re more best practices or guidelines.
Derek: Like the CTIA with the help and message and data rates.
Those are required but they’re not required by the law.
David: That’s right.
Derek: And the TCPA is the law.
David: Correct.
Derek: Okay, perfect.
Awesome.
That sounds good.
I’m Derek Johnson with tatango.com.
We’re here with David Carter at Innovista Law, home of the TCPA Defense Force.
And we essentially answered the question, “Can I text message my customers?”
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