Uncertainty can often breed indecision and inaction, as fear — even in the face of proof to the contrary — can keep companies from jumping in and possibly losing out on an opportunity in the process.
Many companies have elected not to jump into text messaging as a means of communicating with their customers, even though statistics show how commonplace the channel has become. Nearly 70% of members of the Millennial generation and 50% of their parents rely on text messaging as their primary form of communication, over phone calls and emails. But concerns about lawsuits and complying with the Telephone Consumer Protection Act have kept companies from embracing that opportunity.
To help ease some of those concerns, the Federal Communications Commission, the branch of the federal government that is charged with regulating the TCPA, has weighed in on what is and what is not allowed when sending text messages to individuals.
The ruling, issued in July 2015, was the result of a petition filed 18 months earlier by the Retail Industry Leaders Association (RILA). The RILA is a trade organization representing some of the nation’s largest retail outlets. In seeking a Declaratory Ruling from the FCC, the RILA asked the agency to clarify whether the requirement under the TCPA that a caller has prior express consent to contact an individual on his or her cell phone applied to one-time text messages that respond to consumer-initiated requests. Having that clarification, RILA rightfully declared in its filing, would prevent litigious consumers and aggressive plaintiff’s attorneys from going after companies seeking to engage with consumers via the communication method those consumers elected to use.
In making its case, the RILA laid out a series of arguments why these specific set of text messages should be exempted from the prior express consent provisions of the TCPA. The most important reason was that the text message communication was initiated by a consumer and not by the company responding to the message. As well, the text message is a one-time response to a specific request and not a series of multiple communications being made, and, finally, the text message response contains only the information that is being requested by the consumer. The company is not marketing any products or services in the text message, which should preclude the sender from having to follow the same rules as other telemarketers, RILA said in its filing.
The arguments laid out by RILA were persuasive. For the most part, the FCC agreed with RILA, laying out a series of criteria under which the consent requirements do not need to be met when responding to “on-demand text messages.” Those criteria are:
- The text message is requested by the consumer via any communication channel
- The text message is a one-time message sent immediately in response to a consumer request, does not result in subsequent recurring text messages, and is not considered an opt-in to receive marketing or account related messages
- The text message only contains the information requested by the consumer with no other marketing or advertising information
In laying out a scenario where a consumer may initiate a text message communication with a retailer by sending the word “discount,” the retailer may reply with a series of coupons that could be used by the consumer for discounted products or services.
“We agree with commenters supporting RILA’s Petition who believe that consumers welcome such text messages,” the FCC said in its ruling. The TCPA is “not intended to disrupt communications that are ‘expected or desired . . . between businesses and their customers,’ including messages that ‘advise a customer (at the telephone number provided by the customer) that an ordered product had arrived, service was scheduled or performed, or a bill had not been paid. “
So, rest easy, when a consumer requests specific information. follow the proper steps and you will not have to worry about running afoul of the TCPA. We at Solutions by Text can help guide your company to compliantly build a communication solution to help you text with your customers.
“Disclaimer: Solutions by Text is a technology company and provides this blog article solely for general information and marketing purposes. We are not attorneys, however we collaborate with highly acclaimed law firms such as Hudson Cook and Ballard Spahr to develop the content. You should not solely rely on the content of this material for any other purpose or as specific guidance for your company. Solutions by Texts’ opinions, services, tools and products described herein do not guarantee compliance with any law or industry standard. You are ultimately responsible for your own company’s actions and compliance efforts. Because everyone’s situation is different, you must consult your own attorneys, accountants, and/or other advisors to obtain specific advice on your company’s compliance, legal, tax, regulatory and/or other business needs. Despite Solution by Texts’ efforts to provide current and up-to-date information, you need to recognize that the information contained herein may become outdated quickly and may contain errors and/or other inaccuracies”
