During our recent webinar “Mastering TCPA compliance in your SMS marketing program” we had the chance to sit down with attorney and TCPA compliance expert Alexandra Krasovec, Partner at Manatt, Phelps & Phillips, LLP to discuss the future of SMS marketing in a post-FCC TCPA ruling.
The new ruling will go into effect in January 2025, closing the lead generator loophole with 1:1 required prior express written consent.
Now, we would like to dive deeper into the main questions for marketers to consider when leveraging SMS marketing strategies. Let’s jump right in!
What’s informational and what’s marketing?
As Alexandra Krasovec explains, “the TCPA takes a very broad view of what constitutes marketing. Basically, anything that’s not purely informational is really considered potentially marketing.”
For example, as Alexandra goes on to explain, even seeking out a Google review could potentially be considered a marketing strategy. If you think about it, the core objective behind such a request is to gain a public advantage, essentially, to boost engagement or to attract potential customers. So, any activity that closely resembles this effort must be classified as marketing. This classification is significant because the requirements for consent vary between informational and marketing communications.
For a little refresher on the requirements for informational vs marketing calls and texts, check out this blog post.
If I’m engaging in SMS marketing, am I required to comply with the TCPA?
As attorney Alexandra Krasovec says: “Definitely. If you’re engaging in SMS, you’re not exempt from the FCC order.”
She goes on to advise that “if you are engaging in this activity, you should check your marketing, your disclosures for prior express written consent, your vendor agreements, and the other activities you’re engaging in.”
What if I’m not using an Automatic Telephone Dialing System (ATDS)?
According to Alexandra Krasovec, “we are definitely in a gray area still”.
As she goes on to elaborate, the legal landscapes in different Circuits of the US courts of appeals are quite varied with regards to decisions involving ATDS. For instance, the Third Circuit appears to be leaning towards ruling that certain systems are considered ATDS if they just have the capacity, whereas the Ninth Circuit emphasizes the method of generating phone numbers – suggesting that if numbers are not produced randomly or sequentially, the use of the system may not be problematic.
However, this topic is far from settled as the contentious issue hinges on the “capacity” of a system to operate as an ATDS. It’s a complex question that requires careful examination by entities engaged in outreach communication. A categorical stance asserting the absence of ATDS usage can be precarious.
It’s about probing into the capabilities of your communication system. For example, even if you believe your calls are made based on a predetermined logic, any element of randomness introduced by the system, such as randomly selecting between two simultaneous matches, could classify it as having ATDS potential, and you wouldn’t even know it.
Consequently, businesses are faced with two potential approaches: conducting an in-depth assessment of their communication systems to ascertain alignment with legal standards or proceeding with caution by assuming ATDS usage and securing the necessary consents. The choice is pivotal and should be determined through meticulous risk assessment and compliance strategies.
At the end of the day, as Alexandra Krasovec points out, there’s a compelling argument in favor of being fully prepared by having all necessary consents documented. Doing so can simplify matters significantly. In the event of a TCPA claim, possessing a properly filled consent record means you’re equipped with evidence to present to any challenger who might arrive with allegations.
This documentation can demonstrate that consent has been obtained and that disclosure obligations have been met. Consequently, should any disputes arise, you’ll find yourself in a more advantageous position than someone who has to endure a lengthy legal process to confirm whether their system qualifies as an ATDS or not.
What can I use to gather and store proof of consent?
TrustedForm provides independent proof of consent that can be used for legal TCPA compliance. Whether you generate leads or purchase them from independent vendors, TrustedForm certificates provide documentation of consent and insights about the origin and authenticity of each lead.
By adding the TrustedForm web SDK to your web form, TrustedForm records the lead generation event as it happens and provides proof of consent through a TrustedForm Certificate.
The unique certificate can be easily accessed and shared through a URL.
Click here if you’d like to see what a TrustedForm Certificate looks like.
Do state laws differ in regards to the TCPA?
As expressed by Alexandra Krasovec, “state laws do differ from the TCPA in many ways that you might not expect. In some areas, like call times for example, [they are even] conflicting.”
To this regard, Alexandra points out that if you operate as a publisher or assist your clients in generating leads, determining the required consent becomes a key decision point. Will you collaborate with your lead buyers to define the extent of consent they need? Will there be a joint effort to review and accept the terms of disclosure, ensuring they meet their needs? Or will you opt for a more universal consent form? Pursuing a one-size-fits-all approach comes with its own set of implications, especially with varying state regulations, so you might want to be aware of that.
How long does consent last?
According to Alexandra Krasovec, “consent is technically good until revoked.”
However, it’s important to note that this isn’t always straightforward. State-specific laws might place temporal limits on consent validity – for example, Georgia enforces a five-year limitation. Other states may be considering similar regulations.
The durability of consent is further complicated by the issue of phone number reassignment. If a customer changes their number, the consent given earlier may no longer be applicable, as the new owner of that number hasn’t agreed to the same terms. Over time, there’s an increased risk of what’s known as “stale consent,” where the contact details you have are no longer up-to-date.
To mitigate this, Alexandra advises to implement internal policies that regularly verify ownership of the contact information, and “don’t just think ‘I get the consent once and I’m done’”.
Can I cold call someone and then ask for their consent?
“You can’t do that. You have to actually have the consent to make the outreach in the first place.”
As Alexandra Krasovec goes on to elaborate, in order to be compliant, gaining explicit consent is essential before sending any text messages. It is not permissible to text someone and request their permission afterwards.
However, there’s a slight variation in approach whereby you can encourage a user’s proactive engagement with a call to action. For example, if a user opts into a text marketing campaign by responding to an invitation to text a provided number for more information or to join a program, it is acceptable. Under such circumstances, you could then text them a link to a web form to officially complete the signup process – this scenario is permissible.
Do I need express consent for ringless voicemail?
As expressed by Alexandra Krasovec, “ringless voicemails are pre recorded or artificial voice calls according to both the courts and the FCC. So, you are not going to be exempt from the automated calling provisions using ringless voicemail. You need to comply. So if your ringless voicemail is informational, then you need to get prior express consent, and if it’s marketing, you need prior express written consent.”
For a refresher on the differences between express consent and prior express written consent, check out this blog post.
Key takeaways
Here are the main takeaways that we were able to gather from our conversation with attorney Alexandra Krasovec:
- “SMS is a great way to communicate with your customers. Super popular. Lots of people are doing it. You want to join the bandwagon, that’s totally fine. Just remember that when you do, you’re buying risk. So you’re going to want to be doing what you need to do to reduce that risk to the extent you can. TCPA is not a joke.”
- “If you’re getting that consent, which again, you should, you have to make sure it’s right. So, if you think you’re getting informational consent, make sure that the communications you’re sending fit within that bucket. And if you are making marketing outreach, get that heightened prior express written consent.”
- “Don’t assume that just because you’re sending text messages, you’re not using an ATDS.”
- “If you’re saying you’re not using an auto dialer, the question that you should ask yourself is whether or not anyone has actually given you a legal opinion on that. And if they haven’t, consider whether or not you want to get one. If you are not collecting consent based upon that assumption, then that is probably a very important thing for you to consider.”
- “You really do need to make sure that you’re obtaining the consent […] and if you’re in doubt on what level of consent, there is no harm in going conservative, right? Especially if you’re going through the trouble of collecting consent to begin with. It’s a small change to collect the consent versus the kind of gymnastics you’re going to have to do in arguing that you weren’t required to get it.”
- “Pay attention to what the FCC is doing because we’re gonna have more rules soon.”
And ActiveProspect is here to help you stay updated and navigate these new TCPA regulations with confidence. Click here to watch the entire episode and register to our FCC webinar series.
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