As the popularity of text messaging increases many businesses are seeking ways to use this fast and efficient method of communication to market their products and services. Auto dealerships from across the country are using text messaging as a means to promote new vehicles, announce special sales and discounts and to issue service reminders. Most of these texts are sent using an automated dialing system and are known as "robotexts".
The use of text messages in marketing campaigns is regulated under the federal law. In order to promote compliance of the law the Federal Communications Commission ("FCC") issued an advisory which summarizes the use of robotexts. The following is a series of excerpts from the FCC's Enforcement Bureau's recent Advisory.
"Restrictions on making autodialed calls to cell phones encompass both voice calls and texts. Accordingly, text messages sent to cell phones using any automatic telephone dialing system are subject to the Telephone Consumer Protection Act of 1991 ("TCPA").
The term "automatic telephone dialing system" (or "autodialer") covers any equipment that has the capacity to store or produce numbers to be dialed and dial them without human intervention but does not need to have the present ability to do so. The TCPA places limits on autodialed calls and prerecorded- or artificial-voice calls to wireless numbers....and to any service for which the called party is charged for the call."
"Restrictions on Robotexts. The TCPA prohibits autodialed calls or text messages, as well as prerecorded calls, unless made with the prior express consent of the called party, to any telephone number assigned to a cell phone or other mobile device (such as a pager), unless the calls or text messages are: (1) made for emergency purposes; (2) free to the end user and have been exempted by the Commission, subject to conditions prescribed to protect consumer privacy rights; or (3) made solely to collect debts "owed to or guaranteed by the United States."
Consumer Consent. Those contending that they have prior express consent to make robotexts to mobile devices have the burden of proving that they obtained such consent. This includes text messages from text messaging apps and Internet-to-phone text messaging where the technology meets the statutory definition of an autodialer.
The fact that a consumer's wireless number is in the contact list of another person's wireless phone does not, by itself, demonstrate consent to receive robotexts.
Further, recipients may revoke their consent at any time using any reasonable method.
When a recipient of an autodialed text has revoked consent to receive future robotexts, the text sender may immediately send one final autodialed text to confirm the recipient's opt-out request.
Advertising Robotexts. Prior express written consent is required for autodialed texts that include or introduce an advertisement except in certain limited circumstances.
Even if a person has provided such consent, however, his or her later opt-out request requires the sender to stop sending text advertisements.
Robotexts to Reassigned Wireless Numbers. The Commission has determined that when a caller reasonably relies on prior express consent to robocall or robotext a wireless number and does not discover that the number has been reassigned to another party prior to making the call or text, the caller is not liable for the first call or text going to the called party who did not provide consent.
They are, however, liable for any continued calls or text messages to a reassigned number after the initial call or text, regardless of whether or when they learn of the reassignment.
Enforcement. Robotext violations are subject to enforcement by the FCC, including forfeiture penalties up to $18,936 per violation and state enforcement agencies."
The potential liability for violating the TCPA makes it imperative that dealers should work closely with their marketing teams to ensure compliance with the TCPA. Generally a fine is only issued after a consumer files a complaint over the receipt of multiple calls or texts. However, we have seen dealerships sued by consumers and aggressive consumer law firms for just one or two calls.
For more information on the TCPA or how you can use texts in your marketing campaigns contact Stevan LaBonte at 516-280-8580.
If you would like to read the full FCC Enforcement Advisory visit apps.fcc.gov/edocs_public/attachmatch/DA-16-1299A1.pdf.
