Derek: Hi, everyone, Derek Johnson with tatango.com.
Today I’m at Innovista Law, home of the TCPA Defense Force.
And I’m sitting down talking to attorney Ernesto Mendieta about nonprofit compliance
for text messaging, and specifically the Telephone Consumer Protection Act or the TCPA.
So what do nonprofits need to know about complying with the TCPA when they send text messages?
Ernesto: Well, nonprofits have a special treatment, so any message that they send have a specific
regulation under the TCPA.
First, the FCC has exempted them from their requirement of scrubbing their numbers against
the National Do Not Call Registry.
Normally, under the TCPA for any telephone solicitation, you cannot call the numbers
that are registered in the Do Not Call Register.
But nonprofits can skip that step.
Derek: Okay, because, and maybe explain to me, nonprofits they don’t need to actually
to opt-in to receive text messages from the nonprofit or how do people in a nonprofit
opt-in?
Ernesto: Correct there’s, here we’re talking about consent of when to receive.
And we have distinguish between residential and wireless.
For residential, the consent requirement goes down and you do not need previous consent
to talk, to get a call by or on behalf of a nonprofit.
For wireless and text messages to cellular phones, the consent requirement and level
is also lowered.
Under a normal text message, a telemarketing message to a wireless phone, you would need
express written prior consent.
Derek: Okay so if you’re like a brand or retailer sending a coupon, prior express consent,
written consent.
Ernesto: Prior express consent, yes.
For nonprofit you can avoid the greeting part.
So it brings down the requirement to just express prior consent.
So you, if you gave your telephone number to a company, to a nonprofit, sorry.
We’re talking about a nonprofit, it’s understood that you consented to receive information
about that nonprofit.
Derek: Okay, so if I was interested in nonprofit, I gave my email address, I filled out some
info, I put in my phone number, and it didn’t specifically say they were gonna text message
me, it just, I was giving my phone number to the nonprofit, maybe I support them, they
could text message me?
Ernesto: Yes.
Derek: Okay, so that’s why you would have to if you were a brand, you would have to
scrub against maybe the Do Not Call list.
But nonprofits they don’t have to.
Ernesto: Yes, correct.
The other requirement that they’re relieved from is having their company-specific Do Not
Call list.
Normally what companies do is, whenever they receive an opt-out request, they have a list
in which it says these numbers we do not have to call.
Derek: So in our system, we have like the unsubscribed status.
So when someone subscribed, and they unsubscribe, we have to unsubscribe them.
Ernesto: Yes.
Nonprofits do not have that obligation.
They can do it best practices, to avoid calling people.
Because if they’re a nonprofit and they are trying to look funding and they’re calling
someone that already asked them to stop, it’s gonna be an issue and there is not gonna be
any funding.
Derek: Exactly they’re not going to be happy.
Ernesto: They wanna achieve their purpose.
Derek: Yeah, because at the end of the day it’s really the consumer that matters the
most.
Like there is the law, but then also what makes sense for people so you’re not frustrating
them, or you know, making them angry at your nonprofit.
Ernesto: Yes, correct.
Derek: So there’s two different things.
The first one was.
Ernesto: The Do Not Call registry.
They don’t have to scrub their numbers against the registry.
And the second is the lower consent requirements, they don’t need it in writing.
Derek: Okay so you don’t have to like, what we call double opt-in, where, you know, they’re
texting out their phone.
Now they can, right, a lot of nonprofits have double opt-ins, and they opt-in people.
But you’re saying that it’s not required by the TCPA.
Ernesto: Correct.
Derek: An exemption, is that what it’s called?
Ernesto: Yes.
Derek: Okay, so they have an exemption to doing that.
Ernesto: Yes.
Derek: That’s interesting.
Ernesto: Yes, and the other thing that we have to keep in mind is that the messages
need to be made by or on behalf of the nonprofit.
So they can hire agents that are looking for funding for the nonprofit and even those third-party
agents that are calling on behalf of the nonprofit will have the same exceptions.
Derek: Oh, interesting, okay so it could either be the nonprofit or the agents, but they have
to be representing the nonprofit.
Ernesto: Yes.
Derek: It can’t be just like, “Oh, we do business with those people.
And now we’re text messaging them about Chipotle or some other company.”
Ernesto: Yes, it has to be on behalf of the nonprofit, and with a purpose relating to
that.
Derek: Relating to it, okay.
Ernesto: Yes.
You can’t add like, “Oh, I’m calling about this nonprofit, but let me tell you
about this other product that I’m selling.”
Derek: This Ford car that’s amazing, or something.
Ernesto: Yes, that will get you in trouble with the FCC, the courts will see through
it, and know that the main purpose of that call was actually to do some telemarketing.
Derek: To market or sales.
Ernesto: Yes.
Derek: Now what nonprofits, I know there is an exemption if you’re not doing marketing
or sales type text message just in general.
For nonprofits, what if they are selling something?
What if they are technically, they’re always marketing something, they’re marketing a
cause, they’re marketing give me donations.
So all that is exempt?
Ernesto: No, it needs to be related to their nonprofit purpose.
If you entered an area of marketing, or trying to sell a product or trying to promote a service,
you will be treated as telemarketing.
Derek: Okay so promoting, like if I’m a nonprofit and I promote a car, that would
100% be, you know, bad.
Ernesto: Yes, it will end up being considered as solicitation.
Derek: Okay but if I’m selling, if I message my nonprofit members and I say, you know,
we have a new t-shirt out, that has the name of the nonprofit on the t-shirt and we’re
raising money by selling these t-shirts.
Is that kind of a gray area or?
Ernesto: Not a gray area it’s subject to analysis if it comes to the FCC or a court
to actually decide.
But the example you’re saying for me, it’s crystal clear that it’s actually for the
nonprofit purpose, so…
Derek: Because it’s about that nonprofit’s business…
Ernesto: Yes, and it involves the selling of the shirt but it’s part of the funding
of the nonprofit.
Derek: Okay, interesting.
Would you recommend nonprofit, no matter really what, to always consult an attorney?
Ernesto: Yes, I would always do.
Derek: Because it does sound like there are a lot of nuances here.
And certain nonprofits, I’m guessing, are not exempt maybe?
I don’t even know if that’s correct.
Are there like certain designations of a nonprofit that are exempt?
Ernesto: There’s several categories.
And they would all fall into the same one.
Derek: Oh, so they all fall in?
Ernesto: Yes.
They would all fall in…
Derek: As long as you’re a nonprofit.
Ernesto: Yes.
Derek: Okay, interesting.
Well, again nonprofits if you’re listening, text messaging is great but, you know, there
are some exemptions it makes it a little easier.
You don’t have to have the same qualifications I guess.
What was your wording?
Ernesto: Yeah, the IRS can give you a certain qualification, but you can also be a certain
program or a certain association with a different certification you will still fall with the
TCPA exception.
Derek: It’s just a lower barrier, you’re not exempt.
Ernesto: You’re not exempt.
Derek: It’s just there’s a lower barrier to your compliance, I guess.
Ernesto: Yeah, we can say a lower barrier to the consent requirements that you need
to receive.
Derek: So even if you are a nonprofit, definitely consult an attorney because there’s a lot
of nuances.
But again I’m Derek Johnson with tatango.com here at Innovista Law, the home of the TCPA
Defense Force and we’re talking TCPA compliance
for nonprofits.