The first part of a two-part series of our top asked questions about texting!
Our top two Solutions by Text experts, Amanda Payton, General Counsel + Leighann Lindsey, Head of Strategic Accounts went through our most asked questions we get as a top text provider in the industry. To watch the full session – access it here.
Disclaimer
This presentation and any related materials are for educational purposes only. Nothing in this presentation is intended to constitute formal legal advice. Any legal questions should be directed to competent, licensed attorney versed in the subject matter presented.
Any specific technical abilities discussed are subject to the capabilities of the relevant text message provider, integration, and/or configuration.
Laws + Regulations FAQs:
1. Is consent legally required before a company can begin texting a recipient?
There have been a lot of questions about consent over the years. Here’s the breakdown:
ARM industry or if the FCDPA Regulation applies to you and your operation – There is no consent section within the applicable law that says, this is how you get consent to text, or these are the requirements that you need to consent. Consent is not a topic that is covered in those laws. We’ve discussed this with multiple different outside council outfits, and they get the same reaction. For some reason there’s this misconception that there is a consent requirement in Regulation F, and that’s not the case.
TCPA – Consent to send a message is required (which is treated the same as a call under the TCPA) if you are sending it from an automated telephone dialing system. This is that big change in the law that the supreme court justice issued back in 2021. There is now a very clear definition as to what constitutes an automatic telephone dialing system.
2. What is an opt-in confirmation message? Is it required?
- Opt-in confirmation message is NOT an opt-in request message
- DOES NOT require the recipient to take any action
- Documents consent via text message
CTIA Short Code Monitoring Handbook (pages 7-8 discuss the opt-in confirmation message).
Recurring-messages Short Code programs should send a single opt-in confirmation message that displays information verifying the Consumer’s enrollment in the identified program. The opt-in confirmation message must be delivered immediately after the Consumer opts into the program.3 For point of sale (POS) and hardcopy opt-ins, the opt-in confirmation message must be delivered as soon as reasonably possible after the Consumer opts into the program. Additionally, opt-in messages must contain the program (brand) name or product description, customer care contact information, opt-out instructions, product quantity or recurring-messages program disclosure, and with the exception of Free-to-End-User programs, a “message and data rates may apply” disclosure.
CTIA Messaging Principles & Best Practices (page 14 discusses the opt-in confirmation).
5.1.2.1 Confirm Opt-In for Recurring Messages: Message Senders of recurring messaging campaigns should provide Consumers with a confirmation message that clearly informs the Consumer they are enrolled in the recurring message campaign and provides a clear and conspicuous description of how to opt-out. After the Message Sender has confirmed that a Consumer has opted-in, the Message Sender should send the Consumer an opt-in confirmation message before any additional messaging is sent. The confirmation message should include: (1) the program name or product description; (2) customer care contact information (e.g., a toll-free number, 10-digit telephone number, or HELP command instructions); (3) how to opt-out; (4) a disclosure that the messages are recurring and the frequency of the messaging; and (5) clear and conspicuous language about any associated fees or charges and how those charges will be billed.
3. In relation to texting, what legal requirements apply to ARM companies?
There are 2 post Regulation F specific requirements that apply to an actual body of a text message.
First, the word “Debt collector” or Debt Collector disclosure must be in every message, most customers are hyperlinking to mini-Miranda, some customers are writing out language – and not being blocked by carriers.
CFPB Regulation F § 1006.18(e)(1-2)–False, deceptive, or misleading representations or means. Disclosures required.
(1) Initial communications. A debt collector must disclose in its initial communication with a consumer that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose. If the debt collector’s initial communication with the consumer is oral, the debt collector must make the disclosure required by this paragraph again in its initial written communication with the consumer.
(2) Subsequent communications. In each communication with the consumer subsequent to the communications described in paragraph (e)(1) of this section, the debt collector must disclose that the communication is from a debt collector.
Second, you have to have an opt-out mechanism in every message. Most customers are using the language “to opt-out reply STOP”.
Something to consider- Data shows there is not an opt-out increase by including opt-out mechanisms.
CFPB Regulation F § 1006.6(e)–Opt-out notice for electronic communications or attempts to communicate.
A debt collector who communicates or attempts to communicate with a consumer electronically in connection with the collection of a debt using a specific email address, telephone number for text messages, or other electronic-medium address must include in such communication or attempt to communicate a clear and conspicuous statement describing a reasonable and simple method by which the consumer can opt out of further electronic communications or attempts to communicate by the debt collector to that address or telephone number. The debt collector may not require, directly or indirectly, that the consumer, in order to opt out, pay any fee to the debt collector or provide any information other than the consumer’s opt-out preferences and the email address, telephone number for text messages, or other electronic-medium address subject to the opt-out request.
4. Is there specific language that ARM companies must refrain from using in text messages to avoid carrier blocking?
We are not currently seeing any language or messaging that is causing blocking to occur.
At SBT, we do not typically see blocking issues occur within our customer base. While there aren’t specific terms we are going to tell you to avoid, there is language that can be presented in a softer and more appropriate way. You have to make sure that you’re not approaching harassing behavior. We don’t suggest mentioning the word attorney or legal action.
5. Speaking of blocking, is this still happening? What can be done to avoid it?
Fortunately, at SBT we do not experience what many other text providers are experiencing in the marketplace when it comes to blocking.
The biggest reason SBT does not have this issue is because of the use of short codes – more specifically, within the ARM industry. We see much higher deliverability rates on a short code and why we’re able to see success and evade blocking.
6. Can the Model Validation Notice (MVN) be sent via text message?
Yes!
A couple of caveats that need to be addressed:
- You need to make sure that where the model validation notice is falling in your discussion and in your communication cadence with the recipient there is a determination and understanding that there is or is not a signed consent needed before you send the MVN – (SBT is happy to talk through more one off scenario’s with you where this may come up!)
- Should I send it via a link, or would I send it in the body of the text message? That’s comes down to your individual company’s risk tolerance. We’re happy to walk through what your deliverability options are, what we’re seeing in the industry.
- We can tell you the industry is driving towards sending this out via an actual document in the text message, and not utilizing a hyperlink, whereas sending out the many Miranda is acceptable via hyperlink and seems to be more widespread.
7. How should state-specific disclosures be handled via text message?
States started to craft their own state collection laws. A lot of these state- specific disclosures will require you to have a valid license and a valid license number that needs to be included on electronic communications.
Our customers are seeking out an efficient way to handle all of this, so that any updates can be updated in a timely manner. What we’re seeing our customers move towards is utilizing a link. That initial message that goes out to in the ARM space, that initial opting confirmation message that would have a link that has the required mini-Miranda language also includes the state disclosures as well.
We do have some customers that are separating out their subscriber data and ensuring that each state’s requirement is being met for each individual state in the body of the message.
8. What are the differences between 10DLCs and Short Codes?
The length of a 10DLC – 10 digits vs Short code – 5 or 6 digits. The biggest difference is cost differentiation- 10DLC is less to provision and less cost on a monthly basis vs a Short Code. The 10DLC has a message quantity and speed limitation vs Short-Code which is quicker. You can find higher deliverability rates with a Short-Code vs a 10DLC.
Watch part one of the session recap:
Interested in learning more about SBT?
- Watch the full session: Maximize the ROI of Your Texting Program: An Interactive Session
- Download our Checklist: 10 Questions to Ask When Picking a Texting Vendor for Debt Collection
- Download our whitepaper: Compliant Communications
Or Let’s Talk now!
