Derek: Hi, everyone.
Derek Johnson with tatango.com.
Today I’m at Innovista Law, the home of the TCPA Defense Force, and I’m talking
with Ernesto Mendieta, and I’m asking him some questions that mobile marketers have
questions about when it comes to text message marketing and compliance with the TCPA.
So one of the questions we get asked all the time are, “What types of messages and/ or
businesses are exempt from the Telephone Consumer Protection Act?”
Ernesto: Yes, I understand the question and one thing that is important to remember before
we actually get to the exemptions is to know to what text messages the TCPA is applicable
to.
Derek: Okay.
Ernesto: We have to be talking about robocall-started messages.
If you manually text someone, if you grab your phone, text someone, the TCPA won’t
be applicable.
So we have to know that we’re not talking about those messages.
Derek: Okay, so if somebody gets out their phone, text messages a customer, and says,
“Hey, you know, I’d love to see you today,” or, “Your package is ready,” but somebody
actually took out their phone and texted that consumer’s number, that wouldn’t fall
under the TCPA?
Ernesto: You don’t have to worry about the TCPA for that.
Derek: Okay, so, me text messaging you every night and saying, “Hey, what are you doing?”
I can’t be sued for that?
Ernesto: No problem, yes.
Derek: Okay, good.
Okay, so now we know that it has to be…what do you say, “Robocalled”?
Ernesto: Robocall.
Derek: Robocall.
So it’s essentially not robots are doing it, but it’s software.
Ernesto: Correct.
Derek: Okay, so, what businesses and messages, now that we know that that is not applicable,
are exempt from the TCPA?
Ernesto: So, the FCC has recognized that the TCPA by regulating automated or robocalls
for text messaging can be too broad.
There’s…they have recognized certain specific messages that are desirable, that people want
to receive, that they’re time-sensitive and can be for emergency purposes.
Derek: Okay.
Ernesto: So, the FCC recognizing that there are these messages that consumers are willing
to receive and would be…and would benefit from them has imposed certain exceptions to
certain industries.
We can talk about them, but the FCC recognizes the broadness of the TCPA and avoiding to
chill companies from sending texts that would need to be there would prevent companies from
doing it.
Derek: So they’re looking…the TCPA and the FCC eventually, or at the end, they’re
looking out for the consumers’ best interest.
So, they’re saying, “Well maybe if you’re a brand sending messages about burrito discounts
that one definitely falls under the TCPA, but there are some things that, you know,
maybe aren’t as important as a burrito discount.”
Ernesto: Correct.
Derek: Okay, yeah.
Ernesto: Let me give you some examples.
There are industry-specific exceptions.
For example, package delivery.
Derek: Okay.
Ernesto: If you ordered something through any salesman and it’s gonna get to your
house, you’re expecting them to inform you when are you if you have to sign when you
have to be home.
So you as a consumer, you would like to receive that message that your package is on the way,
it will be there in one hour, please be available for a signature.
Derek: Okay.
Ernesto: So, the FCC has issued a package delivery exception that for any text messages
that actually relates to the delivery of the package.
They will be able to send it without worrying about the TCPA.
Derek: Okay, that’s really specific.
Ernesto: Very specific.
Derek: Yeah.
Ernesto: And the problem is it doesn’t give the certainty to package delivery companies
that they’re under an industry-extent exception, but the FCC can make clear that every exception
is text-specific.
Let’s say if a company’s sending a message each message much comply with a number of
requirements that the FCC imposes for them to be exempt.
Derek: Okay, so you’re saying that if I’m a package company, but let’s say I’m not
sending messages about your package being available or when it’s coming, that doesn’t
mean that you as a company are just completely exempt from the TCPA?
Ernesto: Correct.
Derek: So it’s the text message and the content of the text message and what the text
message is about that is exempt from the TCPA.
Ernesto: Exactly.
Derek: I mean, this is confusing.
Ernesto: Yes, and it happens in several industries.
Package delivery was just example.
We have for the health industry, you as a patient you want your doctor to contact you.
You want your pharmacy to let you know that your next prescription is ready, but again
there’s…
Yes, the health industry is exempt, but each specific message must comply with several
requirements, say…
Derek: So, if you were, let’s say, like a, you know, pharmacy.
If you send out a reminder about your prescription, that’s not covered or you would be exempt
from that, but if the pharmacy sent out a marketing text message saying, 20% off, you
know, things in our pharmacy, that would not apply?
Ernesto: Correct.
Because you’re entering the realm of telemarketing.
You have to be for…
If the exception is for the health industry it has to be for health treatment purposes.
Derek: Okay.
Ernesto: So, there’s always gotta be a close relationship between the text message and
the reason why there was an exception.
Derek: That’s really interesting because I think a lot of people in the industry think
that if you are a health company or if you are a package delivery company you’re just
completely exempt.
You can do anything, and that’s not the case.
Ernesto: That’s the general idea because they have heard that there’s this exception
for the health industry, but it’s very specific and the analysis, if it’s exempt or not,
will be on a case by case basis.
Derek: Based on the content of the text message…
Ernesto: The specific text message, yes.
Derek: Okay, so you have healthcare companies, package delivery companies, they’re just
so specific.
That’s crazy.
And then, what other industries or kinds of text messages?
Ernesto: Yes, and I will continue giving you examples, but let’s always keep in mind
these are messages that are important, that are time-sensitive, and we’re thinking of
the consumer.
Messages that they’re desiring to receive.
Derek: Yep.
Ernesto: Another industry, let’s call an industry is the schools.
Education.
Parents have given the schools their wireless number so they’re interested in receiving
a message by the school of that is closely related to the educational mission.
Meaning something happened with their kid, the change for the time that they can go and
pick them up at the school changed, anything that is closely related to the educational
mission is gonna enter at the exemption.
Derek: So the mission of the school.
Okay.
Ernesto: Yes.
But please keep in mind I’m giving you a broad explanation, but again each specific…
Derek: It’s very broad.
Yeah, yeah.
Because raising money could be the mission of the school.
It could be sports like football games.
So really, I think, if you are one of these kinds of businesses, always consult an attorney.
Ernesto: Yes, because the criticism to these exceptions that the FCC grants because these
industries actually gather together.
They go to the FCC and say, “Please exempt us because we’re sending these messages
to parents regarding their kids,” but the FCC goes back and grants these exceptions
but it’s being very specific, setting requirements to each, that each message has to include,
like, you probably know about all of this, but it’s…
They have to have opt-out requirements.
They have to identify exactly who is sending the message.
Derek: So, there are specific requirements also for those kinds of messages.
So really, just because you are a package delivery company does not mean you have carte
blanche or even you’re sending package text messages.
Always consult an attorney.
Ernesto: Always consult an attorney.
Derek: Because there’s just so many nuances.
Ernesto: Yes.
Derek: Okay.
So besides those, what other ones we got?
Ernesto: We have utility companies.
Derek: Utility.
Okay.
Ernesto: Again, it’s a perfect example of, “I’m a consumer of a utility.
I want to know to know if the service is gonna shut down.”
If there’s gonna be an outage…
Derek: Like the lights?
Ernesto: Yeah, of water.
I want to know my water company to let me know, “From this time to this time there’s
not gonna be water running through your house because of maintenance.”
Derek: Now, one question I get asked a lot is, “How do those brands like the schools
or the utility companies, how do they get my phone number?
Do I have to give the phone number to them or can they just somehow find out my phone
number?”
Are there any restrictions on that?
Ernesto: Yes.
These exceptions and I’m saying, like, each exception got its own requirements…
Derek: Okay.
A little different…
Ernesto: A pretty common requirement is saying that, yes, you can call them, and you won’t
be subject to the TCPA liability, but you have to call them to the number, to the wireless
number that they gave you.
Derek: Okay.
So they would have to…
So, if I go to, let’s say, a large online retailer, and I don’t give them my mobile
phone number.
And let’s say they’re delivering my package.
They couldn’t text message me, most likely.
I would have to give my phone number first, and then they could say, “Okay, because
it’s a package alert, that’s okay to message that person.”
Ernesto: Correct.
The FCC’s saying…
Derek: Okay, so, this is complicated.
Ernesto: Yes.
These exceptions, each exception is a whole level of regulation and effects that need
to be understood, need to be applied correctly, and…
Still, you need to be conservative to actually be…honor the exception, and avoid any risk
under the TCPA.
Derek: Okay.
Any other businesses that would have, kind of, an exception?
Ernesto: Well, there’s another big area.
That is political campaigns.
Derek: Okay.
That’s hot nowadays.
Ernesto: It is.
So what the FCC has not exempted them, but they have granted them the idea that they’re
considered as informational messages.
So, even if…
Derek: Okay, but not marketing.
Ernesto: Not marketing and non-solicitation even if they are calling on behalf of a campaign,
and they’re requesting funding or they’re inviting you to a certain event.
The FCC has considered those as informational so they’re not actually exempted.
They’re just classifying them in a certain level that brings a level or the requirement
of consent to a lower level than telemarketing that would require it to be prior written
consent.
For informational, they don’t get to that high level of…
Derek: And by telemarketing, you mean, essentially, in our industry, text messaging?
Ernesto: Yes.
Derek: Like marketing sending out a burrito discount?
Ernesto: Correct.
Derek: Okay.
What about non-profits?
Because I…
It’s kind of interesting because schools might be non-profits.
Politicals are not really, but they’re kind of non-profit.
Like, are any non-profits exempt?
Ernesto: Yes.
That’s…
You bring a great point, Derek.
Non-profits have different levels of exceptions.
So, let’s get…
Let’s start.
First, non-profits…
If a call is made by a non-profit or on behalf of a non-profit, it’s, in comparison with
the political campaigns, it’s considered as non-solicitation.
So again, even if you’re calling to get money, even if the non-profit is calling for…
Derek: You’re soliciting.
Ernesto: Yeah, you’re soliciting.
Derek: Okay.
Ernesto: The FCC has said, “Since it’s by or on behalf of a non-profit, it’s non-solicitation.”
What effect does this have?
Is by being non-solicitation, the non-profit does not have the obligation to be…to scrub
their numbers against the Do Not Call Registry.
Derek: Okay.
Ernesto: So, they can actually call those numbers.
Derek: Oh, okay.
Okay.
Ernesto: Yeah, and the other effect is they do not have to have a personal or the company
inside Do Not Call list.
Derek: Okay.
Ernesto: In comparison to any other company, the companies are required to have their own
Do Not Call lists if each consumer opted out of their consent, you would have a record
or a database of who you should not contact.
Derek: For each company, yep.
Ernesto: Yeah.
Non-profits do not have that requirement.
Derek: Okay.
Ernesto: And just…the other exemption for non-profits is you do not…
The FCC has granted that you don’t know the written previous consent to actually contact
them.
You do need consent, the prior consent, but not written, so…
Derek: So you have to give your phone number to the non-profit?
So the non-profits cannot…
And I don’t even know if there are any businesses that without giving up your phone number they
can text message you?
Do you know, is there any industry or business where it’s, like, “I didn’t give you
my phone number, but under the TCPA, it’s okay to send me a text message?”
Ernesto: Good.
And you’re taking me where I wanted to get at the end.
The general exemption, let’s remember, it’s for emergency text messages.
Derek: Okay.
Ernesto: What is an emergency for the FCC?
It’s, like, any text messages that are necessary to prevent harm to health or safety.
So, answering your question is, could you call a number that you didn’t get consent,
or you didn’t get it directly from the consumer?
We would have to analyze the emergency part of it.
Derek: So, like, a city, you’re saying, if it was, like, a natural disaster is happening,
and they got all the phone numbers of the people that live in that city, and I didn’t
ever give my phone number to the city, they could text message.
Ernesto: Yes.
Derek: I didn’t even know that.
That’s interesting.
Ernesto: Example.
Living here in DC I have the occasional text messages that there was an accident in the
Metro, and it’s like, “Don’t go to this station and this station.”
I never gave my phone number to the Metro company, but since I have a local number that
identifies that I’m in DC, they will send me an emergency alert.
Derek: Interesting.
I had no clue about that.
I always thought you had to get permission.
Now, it’s always good to get permission.
It doesn’t hurt.
Ernesto: Correct.
Derek: You know, so if you sign up for subway alerts, or whatever…
Ernesto: You should…
Derek: Yeah.
Ernesto: My idea is you should because at the end you would end up in a fight of actually
proving that it was for emergency purposes, proving, then, the emergency was there and
it was necessary.
Derek: Because you might not even take the subways, so then it’s like, “Ugh, that
was just a pain.”
Ernesto: Yes.
So it’s…
I mean, the advice continues to be whenever you send the text messages and go to an attorney
and verify that you’re in compliance with the TCPA.
Derek: Okay, that sounds good.
Man, so there are three different ones.
There are businesses which are marketing, soliciting.
That one you have to get permission.
You know, they have to opt-in.
Then there’s kind of the middle ground which is some of the healthcare, non-profits.
What else were there?
Ernesto: Schools.
Derek: Package alerts.
That if they give the phone number, but maybe they don’t consent to certain things.
That’s one.
And then on the very other side, there’s emergency, which is almost kind of a free-for-all.
You can text message them if they…if it is deemed an emergency.
Ernesto: Yes.
Derek: I’m gonna have, most likely, brands being like, “It is an emergency that people
know about this 50% off sale.”
Ernesto: No, never.
If it includes solicitation, it’s not gonna happen.
Derek: Okay.
Okay.
That’s good to know.
That’ll help a lot of people.
Well, thank you very much for your time, and we’ll talk to everyone soon.
Ernesto: Thank you, Derek.
Derek: Thanks again.
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