Safe Text

Texting Consent and Compliance

The best way to reach someone quickly is via text. With Captivated, when a text comes in, it can be easily transferred to a business¡¯s team member, just like a phone call. There is no hold time and the sender is immediately connected to a person that can help. Captivated works to save your business time and improve customer relations. Texting is governed by a federal United States law called the Telephone Consumer Protection Act (TCPA). Below is some information about complying with the TCPA. Additionally, businesses may consult the Best Practices Guide for SMS Marketing and Communications prepared by the Cellular Telecommunications Industry Association (released January 19, 2017).

DISCLAIMER: This document is for informational purposes only and Captivated is not providing you with legal advice. This page is not intended nor should it be substituted for consultation with appropriate legal counsel. As stated in our Terms of Service (or other agreement between you and Captivated, as applicable), customers are responsible for compliance with the TCPA and all other federal and state laws and regulations, including for obtaining consent to send text messages, implementing any revocations of consent, and maintaining records of consent.

What does the TCPA have to do with text messaging?

The TCPA was enacted in 1991 to address telemarketers making robocalls. It has since been expanded to apply to text messages under certain circumstances. The law requires a text message sender to get ¡°prior express consent¡± from a text message recipient if the sender is using an ¡°automatic telephone dialing system¡± (commonly called an autodialer). An autodialer is any system that has the capacity to store and call ¨C or text ¨C telephone numbers at random or sequentially. It doesn¡¯t matter if the sender is texting with a single message. What matters is if the system the sender is using has this ability to store and call (or text) a list of telephone numbers. The Captivated software is not necessarily an autodialer. But in an exercise of caution, we recommend that our customers comply with the TCPA.

Two types of text messages under the TCPA.

There are two types of text messages: (1) informational texts and (2) telemarketing texts or texts that introduce an advertisement. 1 Each require a different type of prior express consent. Although the TCPA has the word ¡°consumer,¡± the law applies to any cell phone receiving an autodialed text message, whether that person uses the cell phone as a business line or not.

Informational texts: Informational texts are those that do not encourage a purchase or inform the customer of available products or services. This type of text message provides information or customer service to someone who has already purchased the text message sender¡¯s product or service or inquired about that product or service. Examples of informational text messages are: an appointment reminder; a reservation confirmation; a bill payment reminder; the amount of a bill and a link to pay online; a notice from a repair shop that your vehicle is ready for pick-up; a ¡°thank you¡± text. The following are examples of text messages that are not informational texts: a coupon or deal; an offer for a free consultation or product sample; a message telling a person about an additional product or service available for sale.

Telemarketing or advertising texts: ¡°Telemarketing¡± means ¡°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.¡± ¡°Advertisement¡± means ¡°any material advertising the commercial availability or quality of any property, goods, or services.¡± The line between informational texts and telemarketing or advertising texts is fine and can be ambiguous. Consider, for example, a customer who brings her car to a repair shop for an oil change. The repair shop texts her that the compressor should be replaced and gives an estimated cost. That text may be considered telemarketing or advertising because it encourages the purchase of and advertises additional services that are available. Consider also a text message that both confirms a restaurant reservation and includes a link to the restaurant¡¯s wine menu and dinner specials, which text also may be considered a telemarketing or advertising text message.

How do I get ¡°prior express consent¡±?

The consent required by the TCPA depends on if the text messages is solely informational or if it contains any telemarketing or advertising.

Consent for informational-only texts: People give their prior express consent to receive informational texts about a transaction, good or service when they gives a business their cell phone number (such as in-person, over the phone, in an email, or handwritten) in connection with that transaction. The text messages must relate to the transaction between the sender and the recipient. If a person has text messaged a business, the business may respond to the specific inquiry. The business may also confirm consent by asking permission to continue communicating by text, but that confirmation is not sufficient to then send telemarketing or advertising texts.

Consent for telemarketing or advertising texts: Prior express consent for text messages with telemarketing or an advertisement requires more than the consent for informational-only texts. Consent must be in writing (hard copy or electronic), with a clear and conspicuous statement where the person provides the telephone number that the person consents to receive (1) ¡°marketing¡± (or ¡°commercial,¡± ¡°promotional,¡± or similar term) calls and texts (2) at that telephone number (3) from the sender specifically (4) using an autodialer. The consent form must also state that consent is not necessary to purchase goods or services.

Can a consumer revoke consent?

Yes. Generally, people use any reasonable means to revoke consent to be called or texted at a telephone number. Revocation should be immediately implemented and an internal list of revocations should be maintained.

How does STOP work?

If a person texts STOP to a text message sender, then that is revocation of that person¡¯s consent to receive text messages. After receiving a ¡°STOP¡± message, a business may only then send a single text message back that confirms that text messages will cease. The business may not send any other text messages to that person unless she/he provides express consent.

Records.

Consumers have four years from the date of the alleged TCPA violation to bring a claim, and so we recommend that our customers keep records of person consents for at least four years.