Derek: Hi, everyone.
Derek Johnson with tatango.com.
I’m here at Innovista Law, the home of the TCPA Defense Force.
I’m sitting with Joe Bowser, a TCPA attorney, so Telephone Consumer Protection Act.
We’re talking about how the TCPA impacts text message marketing.
One of the questions we get asked here at Tatango a lot is “What does consent is not
a condition of purchase mean?”
Because if you opt into a text messaging campaign and the brand is doing it correctly, you’re
going to see on that terms and conditions, that it’s going to say, “Consent is not
a condition of purchase.”
But what does that actually mean?
So, Joe, let’s kick it off.
What does this mean, “Not a condition of purchase?”
Joe: Right.
So we’ve talked about what a written agreement under the TCPA requires, right?
Derek: Yeah.
Joe: One of those elements is this…the stipulation or disclaimer that “Consent is not a condition
of purchase.”
And what that really is telling the consumer is I don’t have to agree to give my phone
number and consent to be sent text messages via an auto dialer if I wanna buy this camera,
this teddy bear, this apple, whatever it is.
Derek: Okay.
Joe: So the consumer needs to know that I can withhold my consent to get marketing messages,
and still complete this transaction.
It’s that simple.
Derek: Okay.
Joe: It’s letting them know, hold on now.
If you wanna finish the transaction for the teddy bear, you can go ahead.
Derek: It’s not required.
Joe: You don’t have to do this.
Derek: Because I think back in the day, I do remember, like, retailers, I’m not gonna
name names here, but you would try to purchase something, and they’d be like, “Oh, we
need your phone number to complete the purchase.”
Is that kind of where this is coming from or protecting consumers that just don’t
wanna give up their phone number to just make a purchase?
Joe: That’s exactly right.
Derek: Okay.
Joe: So there are all kinds of things in form agreements that we sign every day.
Our agreements with our wireless carriers, right.
We probably…if we went through it line by line, we probably wouldn’t agree to many
of those.
Derek: Yeah.
Joe: But Congress and the FCC wanted to give consumers extra protection around text messages
and auto-dialed calls, particularly, those that market a particular good or service.
Derek: Yeah.
Joe: And they wanted consumers to know that you don’t have to accept these messages
or calls if you don’t want to and you can still engage in commerce.
Derek: Interesting.
And what happens if, let’s say, the brand doesn’t disclose that to a consumer?
Is it just increasing the risk of a TCPA violation?
Joe: You should assume that a plaintiff’s attorney on a TCPA case will argue that that
written agreement was not valid under the TCPA.
So you…
Derek: Okay, because it misses that.
Joe: It misses the required element.
Derek: Wow, okay.
Joe: So if you’re missing one piece of it, you didn’t…you know, you’re either in
for all of it or not.
And so if you’re missing that, “Consent is not a, you know, condition of purchase,”
language, the TCPA plaintiff’s attorney will say that agreement doesn’t mean anything.
Derek: It didn’t work under the TCPA.
Joe: Exactly.
So even though you’ve got the first five elements and you’re missing the sixth, they’ll
say that agreement doesn’t matter.
It doesn’t comply with the TCPA regulations, and I didn’t give you consent.
Derek: Wow.
So even if you did give consent, it wasn’t the right consent.
That’s where you can get in trouble.
Joe: Exactly.
Derek: And what are the penalties for violating the Telephone Consumer Protection Act.
Let’s say, you don’t get the right consent.
You don’t do this correctly.
What is a brand looking at?
Joe: The exposure can be tremendous.
Derek: Okay.
Joe: So it’s…so under the TCPA, a negligent violation of the TCPA is $500 per call or
a message.
And then if they can show that you willfully violated the TCPA, and that’s probably not
the case if you just…
Derek: Miss something, yeah, okay.
Joe: …bungled your disclosure language.
The damages there are $1,500 a message or call.
Derek: And that’s per text message to each individual person?
Joe: Exactly.
And that’s just the lawsuit.
So the FTC, the FCC can come after you and they have their own statutory penalties and
fines.
Derek: Wow.
Joe: That can run up to $20,000 a message.
Derek: Jeez.
Okay.
So I think the real takeaway here is make sure that in your terms and conditions when
you opt into a text messaging campaign, make sure, “Consent is not a condition of purchase.”
And, essentially, that means that you don’t have to give up your phone number just to
make a purchase.
Joe: Correct.
Derek: Okay.
Joe: Right.
Derek: Man, that’s crazy.
So, again, I think TCPA compliance is super important, not only from a consumer perspective,
just to make consumers feel okay, and, you know, have a good experience with their text
messaging campaign, but also, from a penalties perspective.
$500 to $1,500 per text message can be very, very expensive.
So, “Consent is not a condition of purchase,” hopefully, we’ve explained what that means,
and what it means when you don’t include that in your text message marketing terms
and agreement that you opt into.
Again, my name is Derek Johnson with tatango.com.
I’m sitting with Joe Bowser from TCPA Defense Force at Innovista Law.
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