Derek: Hi, everyone, Derek Johnson with tatango.com.
I’m here at Innovista Law, the home of the TCPA Defense Force.
I’m speaking with TCPA attorney David Carter.
Now, one of the issues, I guess, with the TCPA is employees should know, I guess, about
the TCPA, but to what extent should they know about the TCPA and why?
David: Sure.
So from our perspective, we’ve been encouraging our clients and others to train those frontline
employees, the people that interact daily with your customers.
Derek: Okay.
So in store, on the phone, maybe in like web chat?
David: Sure.
The people that…yeah, anyone that has a direct relationship with the customers we
believe should have some awareness of the TCPA right now.
And that comes from a 2015 decision by the Federal Communications Commission, which said
that a consumer who has opted in to receive text messages has to be able to opt out of
receiving future text messages in any reasonable manner.
Derek: Okay.
So our software, when people text in stop or unsubscribe, it automatically removes them
or unsubscribes them from the list.
You’re saying that it doesn’t stop there.
David: That’s right.
Under the current rules as adopted by the Federal Communications Commission, they’ve
extended this requirement to honor all opt-outs made in a reasonable manner without then defining,
of course, the natural question, which is what’s a reasonable manner?
Derek: Okay, so it could be more than just for replying stop.
David: It likely is.
So this an issue where courts will probably have to interpret this.
We might see…there is, in fact, a challenge to this requirement right now that’s still
pending in federal court.
And so it’s an area that’s gonna continue to evolve.
And so what we’ve tried to help companies understand is that it’s to their advantage
to not have a full blown training program for frontline employees, but at least to have
some exposure for them to the Telephone Consumer Protection Act and to help raise their awareness,
so that if you’re checking out someone and someone happens to say, “Hey, I really don’t
want to receive text messages from you guys anymore,” that the customer can think to
themselves, “Oh, okay, I at least understand that that’s something I should care about
and I should help this consumer to get off the list.”
Derek: The employee that is taking in that info from the customer.
David: Right.
Should then act on it, right?
They should then help the consumer, you know, find a manager, help him go through the opt-out
process if they’re gonna use the text opt out mechanisms or something, but do something
to help that consumer.
Derek: So you just say, “Sorry, I don’t know what you’re talking about,” is not
a valid opt-out or not a valid way to respond to a customer.
David: Yeah, it’s definitely the issue is, is like if you have these employees and they’re
not aware of the TCPA requirements, and therefore they don’t help the consumer, then you’re
much more likely to have, A, an angry consumer, which is just like…
Derek: Yeah, you never want that.
David: Not great for business.
But beyond that you’re much more likely than to have a consumer that says, “Hey,
look, I…”
Derek: Tried.
David: “…tried and you didn’t help me, and I think he should have helped me.”
And again, as we like to say is there…you don’t wanna be the test case, right?
You don’t wanna to be the one that has to go through the litigation process and test
whether or not you needed to have consumers prepared.
We’ve helped to make this easy for our customers and others that are doing text messaging.
We’ve developed a very short animated, like, 10-minute video that can be played through
like a web platform.
Derek: Oh, like a training video?
David: Yeah, exactly.
Derek: Okay.
For employees?
David: For employees.
So it’s very geared towards those, again, those frontline employees.
We try to take something that as you know the Telephone Consumer Protection Act can
be pretty complex.
Derek: Very complex.
David: And we try to boil that down into the basics, help…again, raise awareness and
help an employee understand as part of my job of working for this company and working
to protect this brand that I care about, one of the things I need to do is be aware when
the consumer says, “Hey, I wanna stop getting my text messages from you guys.”
Derek: But it’s not like the employees need to study the Telephone Consumer Protection
Act.
Essentially they might not even need to know what the TCPA is, is that you have to honor
opt-out request by law because the TCPA is law.
David: Right, that’s right.
Derek: Okay.
David: Yeah, so right, you’re not gonna train them to the same level that you would
train the compliance team…
Derek: Okay, marketing team maybe.
David: …or the legal team.
Exactly.
You don’t need to train them to that level.
They don’t need know all the nuts and bolts, right?
What they need to be aware of is, “Hey, look that consumers have a right to stop receiving
messages if they don’t wanna get them anymore.
And when someone asked me to help them with that I should figure out a way to help them.”
And usually, we encourage companies to couple that up.
Of course, here’s the 10-minute training video and here’s the 3 things in our…the
ways that you can help.
Here’s very specifics.
Derek: How to opt them out.
David: Correct.
Derek: Whether that’s helping the customer, maybe they have…
David: Call your number.
Derek: Maybe they have website that they can type in the customer’s phone number.
So there are all different kinds of ways.
David: Exactly, exactly.
So it’s really just that awareness-raising part of helping to make sure that your employees
are out there on the frontlines are helping to insulate the company from this risk.
Derek: Because the punishments of violating the Telephone Consumer Protection Act are
pretty great, right?
David: Yeah, they’re pretty severe.
So you’re talking about $500 per message, if you’re sending unauthorized messages.
And so what the FCC has made clear is once someone’s expressed their desire to opt
out…
Derek: Even to an employee, yup?
David: That’s the gray area.
But once they’ve made it clear that they don’t want to receive your messages anymore
and you continue to send messages past that point in time, then every single one of those
messages could be subject to a $500 liability, potential that it goes up to $1,500 if they
can show that it was a willful violation.
And this is really the other part about why the training is so important.
If you’re a large company and you have stores across the country, for example, you may not
get every single employee to understand and appreciate that they have to take this, right?
That’s a huge task.
But if you can show that as a company you have been diligent in training your employees
and providing them with information and helping to train them, it provides a layer of protection,
that even if you were to have one instance where someone said, “Oh, you didn’t honor
my opt out request,” you’ve taken appropriate measures and you should be able to insulate
yourself from that triple damages, the $1,500, right?
And so as you’re doing the training, it’s really important that you’re tracking the
people that are taking the training, so you can show a court if this becomes an issue,
“Look, we did everything we possibly could,” right?
Anytime you have human involvement, there’s always an area for failure, but can you show
as a company that you’ve been really proactive and diligent in helping to educate your employees
do the right thing for consumers?
It’s good business, frankly.
I mean, like it’s good for your customers to feel as like people care about their concern
and that your employees are there to help take care of it.
But it’s also good because you don’t wanna spend that money on litigation and defending
yourself in court.
Derek: That’s expensive.
Just one person receiving a text message after they’ve asked maybe an employee, you know,
“Hey, stop text messaging me,” $500 or $1500 depending on kinda the circumstances.
And every single text message after that, another $500.
So it keeps growing significantly.
David: Adds up pretty quickly, that’s right, that’s right.
So we think this is a pretty light expense to kinda get some training out there and on
the front end and help to avoid those situations down the road.
Derek: Interesting.
So essentially first, though, get the consent.
That’s always the key.
David: Always number one.
Derek: Yeah.
Number two is make sure the software is, you know, replying stop and, you know, unsubscribing
them.
David: Sure.
Derek: So the software does its job.
David: And that makes it…that takes care of the vast majority of issues.
Derek: Majority.
But now there is this thing and that was when did that come out?
David: 2015.
Derek: 2015.
So recently because the TCPA is ever evolving.
David: It’s constantly changing.
Derek: So you always gotta stay on it.
It came out, and now you have to…now it’s not the law yet or is it still…it’s just
not clarified yet?
David: So it’s definitely has been in effect since 2015, this reasonable opt out language
has been in effect since 2015.
What’s happened is that there is an appeal to that FCC order, and that appeal remains
pending.
Derek: Because it is was very generic, right?
That’s the problem.
David: Correct.
And the question is that they’re asking the courts, is it’s so generic, that it’s
subject to so many interpretations, that as a company, like, trying to do text message
marketing and reach my consumers…
Derek: And doing it right, they wanna do it right.
David: Yeah, you wanna comply, right?
That is the biggest challenge, right?
So if you’re a company, you wanna do it right but you don’t know what right is.
Derek: Is right like if a consumer stands outside your store and yells, you know, I
guess there are just so many different ways, so the clarification will help.
David: Correct.
Derek: But at this point, if a customer wants to opt out, you gotta try to get them out.
David: Yeah, I think that you have to be mindful that there are a series of professional plaintiffs
and professional plaintiffs’ attorneys that are thinking of ways to create cases.
Derek: These are people that are doing it on purpose almost, or some of them.
David: Yes, there’s a lot of good people that are not doing it on purpose that really
do have a problem.
They don’t, you know, they try to…
Derek: They try to get out and they can’t get out.
David: They can’t.
But you have a class of people and plaintiffs’ attorneys that are really generating these
cases, and they’re doing it intentionally.
Derek: So they’re testing the holes in the brand essentially by…they know they can
reply stop…
David: Sure.
Derek: …but instead they’re walking into a store finding the newest employee and asking
them.
David: And asking them and probably filming it, so they have, you know…
Derek: Okay, interesting.
David: So you’ve got to be prepared and you’ve got to think like the plaintiffs’
attorneys that are thinking, “How can I generate cases?”
And then you’ve gotta create these defense mechanisms to help eliminate you being the
test case, right?
And they target…you know, this is the sad part about the landscape right now, right?
They target brands that are doing the right thing, they’re trying to do the right thing,
but they also know those are the brands that have the money.
Derek: Yup, large pockets.
David: They have large pockets.
And so they’re out there trying to think of ways to create cases.
And we think that, you know, this is an area where if you’re not kind of on your toes
and sort of thinking proactively and looking at it from the perspective of the plaintiff’s
side, that you’re gonna find more and more of these types of cases unless and until the
rules change again or the court strike down this requirement.
Derek: Or clarify it, you know, specifically how it can be done.
David: Exactly.
Derek: Okay.
David: And one more point that I think is so critical to bring into that discussion
is, before 2015, you also had the option of sort of clarifying in your terms of service
when people opted in to receive your messages the ways in which they could get out.
Derek: Oh, so you could put in your terms of service, you know, you have to come to
my store and yell outside the store to opt out, that’s the only way.
David: Or more likely you have to stop text, you know, you have to send the text message,
and that’s the ways in which…
Derek: Only way.
David: …I will honor the opt out request.
So the FCC…and when they made this shift, right, and said, “You have to honor any
reasonable opt-out request,” they also restricted your ability to put into your terms of service,
“We only do opt-outs in one or two ways.”
Derek: So now you can’t have that.
So again, it’s you can say what specifically is the way, but you have to accept every way
almost.
David: Right.
Derek: Okay.
David: And so that makes…that’s really it’s this combination of not being able
to contractually guide people down a specific path, combined with the fact that they’ve
left open this broad definition of reasonable opt-out request, which will still have to
get flushed out over time and what does it really mean and how does it work in real life.
And that’s the environment that we find ourselves in right now, which is why from
our perspective we think that there is this pretty significant benefit to doing training
and kind of raising awareness among your employees, so that they can be your eyes and ears on
the ground and help you.
Derek: Yeah, well, it can be pretty expensive if there is a mistake.
Definitely, something brands do not want.
Well, again, my name is Derek Johnson with tatango.com.
I’m here at Innovista Law at the TCPA Defense Force with TCPA attorney David Carter.
We just talked about why it’s important for employees to not only be trained on the
TCPA, but also honor the opt-out requests from your consumers.
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