Derek: Hi, everyone.
Derek Johnson with tatango.com.
Today I’m talking to Joe Bowser from Innovista Law.
He is part of the TCPA Defense Force here at Innovista Law.
We’re gonna be talking today about double opt-ins for text messaging.
So there’s a lot of confusion if a double opt-in is required by the Telephone Consumer
Protection Act.
Which is essentially the Federal law that protects consumers from receiving text message
spam.
So, Joe, let’s answer this once and for all.
Double opt-in, is it required in the Telephone Consumer Protection Act?
Joe: Short answer, no.
Derek: Okay.
And by that you mean it’s not mentioned in the Telephone Consumer Protection Act?
Joe: No.
Derek: Okay.
Joe: No, the TCPA requires consent and the level of consent can vary based on the kind
of call, the kind of phone number and what the call is about.
Derek: Okay.
Joe: So if you’re gonna send an SMS that is marketing related to a consumer you need
prior express written consent.
If you’re gonna get that consent by text message double opt-in is the best way to do
it.
Derek: Okay.
Joe: Now, you could also do it via an online portal where the consumer sees all the required
disclaimers.
Make sure that their phone number is properly entered, and then they consent via checkbox,
typically, or typing in their name to receive the SMS.
So in that format, you didn’t have a double opt-in.
Derek: Correct.
Joe: Right, but if they see a call to action text sale to a short code…
Derek: Like on a billboard or something?
Joe: Right, exactly, they text sale to a short code or Joe’s pizza to a short code.
And they take that action and they get a responsive message from the platform that has all of
the required disclaimers.
Derek: Okay.
Joe: If they text whatever the keyword back is, “Yes.”
“Opt-in.”
If they text that back that functions as a signature.
But you didn’t have to get their consent that way.
Derek: Okay.
Joe: So double opt-in is never mentioned anywhere in the TCPA, in the law, in the FCC’s regulations
about it.
But it is an acceptable way to get consent.
Derek: Okay, so if a consumer sees a billboard and they text in the keyword like “Pizza”
to 12345 to opt-in receive marketing, sales-related messages, is just that message enough consent
or is the reason why we do a double opt-in or we recommend a double opt-in is because
it might be a chance that the consumer didn’t see the terms and conditions on that billboard?
Or maybe you took a photo of the billboard and it wasn’t even on there.
Joe: Or your friend told you about it.
Derek: Exactly.
Joe: And so if you ever got sued for a TCPA violation, you can’t prove that that consumer
saw and consented to all of those terms and conditions.
Derek: Yeah, it would be hard because you’d be like, “Well they saw the billboard,”
and the consumer could say, “Well I didn’t see the billboard.”
Joe: I don’t wanna get into the niceties of litigation, but I’ll represent to you
that you’re gonna be a long time into that case before you can prove to the judge that
they actually saw those things.
Derek: Okay, and that costs money and time…
Joe: They cost money and you’re gonna depose them a year later, “Do you remember what
billboard you saw a year ago?”
So when they say, “I don’t remember.”
they’re probably being honest and you’re gonna have to go to trial about this.
That is not an efficient way to conduct your business.
Derek: So with a double opt-in though, you’re sending them in the text message the information
that they need to consent to.
And them replying yes, is a record that a company like Tatango would keep.
Joe: Exactly.
Derek: And then if there was a threat of lawsuit and they said, “Oh I didn’t consent to
any of that” we would just pull up the text message record and…
Joe: Right, at 3:39:12 you texted yes to the opt-in language.
You can show the message flow, you send that to the plaintiff’s attorney and typically
you never hear from them again.
Derek: Okay, and then if you’re doing like a point of sale or website opt-in, it’s
pretty obvious that they went to the website.
I guess it would be the same.
They could claim, “Well I didn’t scroll down far enough to see the terms and conditions.”
There’s all kinds of ambiguity there, I guess like you could always come up with something.
Joe: But you’d always keep a record of what that website looked like right?
Derek: Okay.
Joe: So you’d always keep a record of what that customer experienced when they gave their
consent.
And there are definitely been cases that go both ways about whether the consent was valid
based on where that disclaimer language was.
Derek: How big it is?
Where it is?
Joe: How big it was?
Where it was in relation to the phone number?
Where it was in relation to the signature?
Derek: Okay.
Joe: So if you bury it if you had to scroll to go see that language.
Derek: So it seems like, well the double opt-in is not required.
It’s definitely not required.
It’s not in the TCPA.
It seems like it’s just kind of the best way to do it to avoid a lot of these issues
of depositions, and figuring out who saw what, and you know the size of the font, and where
it’s located.
Because on a website you could then send a text message which will include all the info
and then you could reply “Yes.”
Joe: Correct.
Under the TCPA.
It has the added advantage of making sure that you’re complying with what I call the
CTIA guidelines.
Derek: Correct.
Joe: So, now that’s not a law, that’s an industry guideline, good to follow.
Derek: And I think that’s where a lot of the confusion comes from, is the CTIA, TCPA,
they think it all kind of is one law, maybe.
Joe: And its acronym SOUP.
Derek: Yeah.
Joe: But only one of them is law, the other one is essentially an industry best practice.
But no one can ever sue you for not complying with CTIA guidelines.
Derek: Interesting.
Joe: There are no statutory damages, there are no damages for not complying with CTIA
guidelines.
The wireless careers might be upset with you.
Derek: Yeah, and that could be a shortcode suspension but you can’t bring somebody
to court for that?
Joe: No.
Derek: And that’s main concern is court because the damages are what? $500 to $1500
per text message?
Joe: Exactly.
So you don’t wanna screw this up.
You don’t wanna rely on the single message billboard method.
Derek: Yeah, and as I always say, I’m pretty sure you agree is when it comes time to like
crafting an opt-in message process terms and condition, this is not something you can just
copy from another person’s website right?
Joe: No.
Derek: This is something you should hire an attorney for.
Joe: It should be tailored to your campaign.
Derek: Okay.
Joe: And even across campaigns, right?
I mean different campaigns have different TCPA implications.
Like I said in the beginning where are the calls going?
What kind of phone number?
What are the messages about?
There are a number of variables that you need to think about and make sure that the campaign
itself is TCPA compliant.
Derek: So blanket statements may be work for a small, small business, like, for anybody
that is concerned about TCPA that has a big large brand that they need to protect, hire
an attorney and really go and figure out what specifically needs to be in their terms and
conditions, what the opt-in flow, everything like, even small businesses.
Joe: Said it and forget it doesn’t even work for brownies.
Every oven varies, right I mean you have to…
Derek: That makes sense.
Joe: … think about these things because the regulations have so many variables and
they change all the time.
Derek: That’s true.
It’s in the TCPA are always like evolving, court cases.
Joe: Exactly, there’re outcomes in different, what I call, circuits around the country,
where something may be fine in the first circuit in New England.
But the Northern District of Illinois has a very different interpretation of what the
TCPA actually means.
So there may be sensitivities there and you wanna make sure that you’re complying with
the highest standard.
Derek: Interesting.
So this might also be a reason to why going to an attorney that is TCPA like a specialist
or something?
Joe: Right.
Derek: I’m not trying to promote you but like somebody that actually knows what the
TCPA and all the different nuances of it.
Rather than just like a general business attorney.
Joe: It’s the second most prevalent kind of litigation in Federal Court.
Published decisions come out every day.
Derek: So you have to be following it all the time.
Joe: If you’re not you’re at risk.
Derek: Yeah, and you don’t wanna be at risk because $500-$1500 per text message and that’s
per text message.
Times how many text messages you send them, times how many people are on that list.
You’re talking billions of dollars if you have millions of subscribers.
Joe: Exactly.
Derek: Oh man.
Okay, so today we learned that the double opt-in, while it’s not required or not in
the law of the TCPA, it is best practices and it protects you from a lot of kind of
the litigation, the issues that could happen with TCPA.
So, interesting stuff today.
Again, Joe Bowser with Innovista Law and the TCPA Defense Force, and I’m Derek Johnson
with tatango.com.
Joe: Thanks, everybody.
Derek: Thanks for watching our video today.
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