Derek: Hi, everyone.
Derek Johnson with tatango.com.
Today I'm at Innovista Law, the home of the TCPA Defense Force.
And I'm sitting here with attorney Ernesto Mendieta.
And we're talking about international messaging, and not people text messaging internationally,
but actually people outside of the United States texting U.S. consumers.
Because we have a thing here in the United States called the Telephone Consumer Protection
Act, and it essentially protects consumers from receiving text message spam.
Now, I get a lot of questions on companies or from companies saying, "Well, if I have
a company outside the United States and I'm texting in to the United States, do I have
to follow the TCPA?"
Ernesto: You do have to follow TCPA.
Even a TCPA text broadly says that the prohibitions that it contains are applicable to calls within
the United States but also for persons outside the United States calling into the United
States.
So, the TCPA recognizes in its own text that there is a possibility of people calling or
sending messages from outside its borders, and the TCPA must be complied with.
Derek: And there's no like...I've heard people, you know, maybe spammers try to get around
the TCPA.
They will have a brand but then they'll hire, you know, they'll have a brand in the United
States, they'll hire a call center outside the United States to try to maybe skirt the
rules.
Is there any way that a brand can really skirt the rules when it comes to TCPA compliance
if you're texting people in the United States?
Ernesto: No.
If the recipient is within the United States, meaning a U.S. telephone number, the TCPA
will apply on their liabilities there.
So, whenever any company needs or is contacting a U.S. customer, the TCPA will apply.
This plays in both ways for international companies that are marketing their products
or services all around the world, if you're targeting the U.S. market and U.S. consumers,
they will have to comply with the TCPA.
And the other side of this story is U.S. companies who for cost purposes or for whatever reasoning,
they always try to...they say, "Well, complying with the TCPA is too complicated, I don't
wanna do it.
I'm just gonna hire an agent or I'm gonna hire a call center down in Asia or in Latin
America.
It will save me this much amount of money and I won't have to worry about regulations
because who's calling, Latin America?"
Derek: It's not us.
Ernesto: It's not us.
But here we have to remember that becomes a liability under the TCPA.
If you have an agent doing calls or sending messages on your behalf, the company is the
one who's gonna be liable.
So it doesn't matter where it is located, if you have equipment, if you have your server,
if you have your software outside the U.S., if you're contacting U.S. consumers, you have
to comply with the TCPA.
Derek: Because the FCC essentially put the TCPA in place to protect U.S. consumers.
So at the end of the day, it's to protect U.S. consumers.
And they seems like they've done a pretty good job of making sure there's no loopholes.
Ernesto: Yes.
And you would say like, well, it's a little long further, they're going to international
companies, but not really because they're targeting, yes, international companies.
Well, they're trying to do business in the U.S., so they should comply with the U.S.
laws.
Derek: And I know you know a lot about foreign laws and foreign calling.
Is there other countries that have a stringent of a policy as the TCPA here in the United
States?
I know that's a hard question but...
Ernesto: Let me separate the answer is a lot of regulation, regulators around the world
similar to the FCC but in another countries are also dealing with spam, with robo calls,
so they have their own form of dealing with them.
What I would say is unique about the TCPA is uncapped statutory damages.
Well, in other countries, yes, you could get a fine or you could get a lawsuit for calling
or for invading the privacy of certain receivers of the text messages.
The exposure that you have is completely disproportionate to what the U.S. has.
In the U.S., with the statutory damages are $500 to $1,500 per message...
Derek: Per text message, yeah.
Ernesto: ...sends the final awards in any lawsuit to the billions of dollars.
Derek: So no other countries have that, like, high of a penalty for a text message spam?
Ernesto: Yeah.
Now, the exposure...if we compare the exposure under the TCPA in the U.S. with other company,
it is ridiculous how the TCPA is way higher, yeah.
Derek: It does protect consumers, though, in text message marketing.
We see 99% open rates, we see 90% of text messages opened within three minutes.
And I think the reason is is because we don't see a lot of text message spam.
In foreign countries, I'm guessing there is more text message spam because there isn't
as much of a punishment.
Ernesto: Yes, correct.
We always...we understand, as a company, you want to comply with applicable rules, but
also the fine or their laws also needs to be reasonable.
You cannot expect for making one mistake for your whole company to go to bankruptcy.
Derek: Yeah, it does seem like it's a pretty hefty fine.
Ernesto: Yeah.
I'm just giving one example, we have Canada who has similar fines, or exposure than the
U.S.
But every...For them to actually impose a fine, they go through the reasonableness of
this sanction.
So, if it was just a one off mistake and they see that the company was in compliance and
was diligent in their business, they can reduce it.
And they also have a cap of $10 million.
Derek: Oh, for the whole thing?
Ernesto: Yes.
Derek: Because here it's $500 to $1,500 per text message per person for everybody, so
these things could be billion dollar law suits?
Ernesto: Yes.
Derek: Even for just one text, like a mistake.
Ernesto: Correct.
Here in the TCPA Defence Force, we have made this analysis comparing several jurisdictions
in several countries and we have examples in Spain that there was this company that
sent up to six million text messages in violation of their TCPA equivalent law.
If you're talking about six million messages, under the TCPA, your exposure is billions.
Derek: Yeah, somewhere up there.
Okay.
Any other things that companies should be aware of when dealing with kind of international
text messaging?
Ernesto: I would just make them aware that the FCC does care about this.
The FCC, the enforcement unit has recognized that more, not most, but a big percentage
of text messages coming from...that are in violation of the TCPA come from abroad.
So what they have done is they have several memorandums of understanding, they have several
agreements with enforcers all over the world in trying to locate where these spam initiating
so they can attack it.
So the FCC cares about it, is taking actions to do it, so never think that, "Yes, even
if it applies, how are they gonna even know that I'm doing it."
Derek: That's what I was thinking, if it's in a different country, it's kind of like,
what are the chances...
Ernesto: The FCC is in active collaboration with other agencies around the world to try
to locate and prevent these kind of breaching messages.
Derek: That's good because it protects consumers in the United States from receiving text message
spam, whether it's for, like, from the United States or from outside the United States or
agents.
I think that's a good thing from a consumer perspective.
Ernesto: Correct.
And compliant companies like Tatango don't want to have competition by non-compliant
companies coming from abroad.
Derek: That's a good point.
Man, a lot of learning today.
Again, my name is Derek Johnson.
We're here at Innovista Law with the TCPA Defense Force, and we're talking TCPA compliance.
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