This week, new regulations regarding the FCC’s Telemarketing Consumer Protection Act (TCPA) went into effect. We’ve received calls and questions from clients, and you may have received text messages from marketers asking you to confirm your opt-in for their promotional messages. However, this rule change has not been a big deal for Call-Em-All and our clients. Before I get into why, let me first add a few disclaimers: 1) I am not an attorney, 2) this post does not constitute legal advice, and 3) please consult a real attorney if you have concerns about compliance.
The new regulations that went into effect on October 16th, 2013 have two primary provisions. These affect both group text messaging and automated calling.
1) All prerecorded telemarketing calls will require “prior express written consent” from the recipient. So, a consumer will need to explicitly indicate that they want to receive automated promotional calls at their phone number, then give you their signature. At Call-Em-All, we love this rule. It is extremely clear and eliminates a TON of unwanted calls.
2) Elimination of the “established business relationship” exemption for making automated telemarketing calls to residential landlines. Previously, if you had done business with a company, they were able to make automated prerecorded telemarketing calls to your home – even after establishment of the Federal Do Not Call registry.
This sounds great – so why is this not a big deal?
Put simply: The recent FCC TCPA amendments are not a big deal because the FTC released nearly identical rules in 2008. Both the FCC and FTC have jurisdiction over most automated calling services. So, this week’s FTC changes were essentially just synchronizing the two agencies' rules. When the FTC’s Telemarketing Sales Rule changes went into effect on 9/1/2009, Call-Em-All made sure that any of our clients that were making telemarketing calls had explicit written, signed permission to call. As you might imagine, very few businesses have gone to the trouble to collect such permission. Naturally, then, Call-Em-All makes very few marketing calls. The majority of our call blasts are sending out purely informational calls such as weather delays & cancellations, important reminders, emergency communications, job openings, etc.
Telemarketing and Informational Calls – Different rules apply!
When looking at the TCPA, it is extremely important to understand the difference between telemarketing and informational calls. You see, the regulations from both agencies are explicitly targeting telemarketing calls. Think about it – most people don’t even consider a snow day call from a school to be an “annoying robocall,” do they? In fact, I’d bet most people don’t even consider this type of call to be a robocall at all. That’s why the TCPA has different rules for informational calls. With informational calls, the regulations require only “prior express consent” (not written). That sounds fancy, but it just means that the person has somehow given you their phone number – either verbally or in writing. For example, when you give your employer your phone number, you are actually giving them consent to send you prerecorded messages about things like office closings and shift changes/cancellations. Note that if you get sued, you’ll have to be able to prove that the person gave you their number!
Ok, how do I know if my calls are telemarketing or not?
The FCC defines telemarketing as “the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person.” It is a very broad definition, and we at Call-Em-All applaud this. For example, if a bookstore placed an automated call that said nothing more than “This is Acme Books calling. We have free balloons for kids on Saturday. Come on down and see us.” – I think most people can understand that this is intended to induce the purchase of books and would constitute telemarketing.
Ok, but what does all this have to do with text messaging?
The FCC and our court system have clearly indicated that, at least for the purposes of the TCPA, a text message is equivalent to a phone call. Since our group texting service was released a few years ago, Call-Em-All has required all of our clients and text recipients to explicitly opt in to receive messages via our short code. While other companies may have allowed users to upload lists of phone numbers, we followed Mobile Marketing Association and CTIA (the organization that represents cell carriers) best practices. Folks who opted in received explicit instructions on how to opt out, among other info (“STOP to Stop, HELP for help, Std msg & data rates apply”). By requiring this explicit opt-in and following best practices, we haven’t had to bother our clients or their text recipients with opt-out reminders or requests to opt-in again properly, like many companies have had to do.
I hope you found this helpful. If you’re looking for more details, I found this excellent summary of the recent FTC and FCC regulations on automated calling & texting. Of course, you can always call, email, or comment below if you have questions.
Have a great day!
Brad Herrmann is the founder and president of Text-Em-All (formerly Call-Em-All), an automated calling and mass texting company that provides solutions for small and medium-sized businesses, large corporations, membership organizations, community groups, and individuals. Brad is a graduate of Texas A&M University.