Businesses in all industries use phone calls and SMS messaging today as mission-critical tools to reach consumers, for both marketing and keeping in touch. However, by using any type of call using a phone, or mobile phone, you should make sure your compliant with TCPA rules.

A common misconception is that TCPA rules only apply to automated texting and phone calls, but it applies to all types of calls and text messages.

The Telephone Consumer Protection Act (TCPA) went into effect in 1991, and it has since been modified go beyond traditional phone calls and robo-calls to also include SMS/text messaging.

In general, businesses may not engage in any of the following without prior express written consent from recipients:

Express Consent means that you must provide clear and conspicuous disclosure of what the user is consenting to, and who they’re consenting to get it from.

An example of express written consent is as follows but may need to be further adapted depending on the circumstances:

By completing this form and providing your phone number you consent to receive text messages sent manually and/or automatically from [YOUR NAME/BUSINESS NAME] to the number provided, which you also certify is your own number. Standard message and data rates may apply. To unsubscribe from any automated text messages simply reply 'STOP' to the any messages and you will be opted out of all future text messaging.

Obtaining an individual's phone number—regardless of whether they are a potential lead, an existing client, a former customer, or a member of your group or organization—is not the same as receiving permission to contact them.

LinkU includes this consent disclaimer on all it's LeadGen pages opt-in forms.

As stated in our terms and conditions, all of our clients have a legal obligation to ensure that their contact lists and messaging content are compliant with all applicable state and federal laws, as well as all requirements established and enforced by the CTIA that regulate SMS/text messages.

For automated marketing messages, yes, and since almost anything sent from businesses to consumers counts as a marketing message, it is safest to obtain prior express written consent. Limited exceptions include when you manually text or call someone without using an autodialer AND assuming they are not on a DNC list. This means if you text, or call someone (even manually), you must have checked if they are on the DNC list first.

For automated, non-marketing (transactional) messages, such as appointment reminders, written consent is not necessarily required.

Instead, it may be enough to obtain "express consent," which may be implied by the consumer’s prior provision of their number to the client in the normal course of business without conditions, and so long as they have not opted out or had their number reassigned.

Still, the non-marketing message must be "closely related" to the original purpose for which the number was collected, and the provision of the number must be well documented. There must also be no promotional content or purpose. Non-marketing messages are not subject to the DNC lists.

These are messages sent with the purpose of increasing sales, promoting your product, or raising awareness about your business. You may have heard promotional messages referred to as marketing or advertising messages. In the eyes of the TCPA, these are all synonymous.

Promotional text messages are a great addition to any business’s marketing plan under one condition. You must have permission from your customers. Express written consent is required to send promotional texts. Express consent can never be implied or assumed. It must be written electronically, on paper or in a recorded verbal agreement.

Examples of Promotional Text Messages
Any text message that is intended to promote your organization is considered promotional, including the following:

Coupons, discounts, and offers
New product announcements
Sweepstakes
Fundraising requests

These are messages which contain information that is necessary for your customers to use your product or service. The important term here is necessary.

As we mentioned above, express consent can never be assumed. For example, if a patient provides their number for verification purposes when picking up a prescription, they’re not automatically consenting to prescription refill reminders. While some consumers may find prescription reminders helpful, they’re not necessary and therefore don’t constitute a transactional message.

Examples of Transactional Text Messages
Transactional texts usually contain additional information that customers have requested. Customers consent to transactional texts when they provide their number. For example, if during a checkout process users are given a prompt that says "provide your mobile number for shipping and delivery updates," they provide consent by entering their numbers. 

Think of the following:

Order confirmations with tracking numbers
Two-factor authentication
Password resets
Reservation confirmations (With prompt to reply Y/N to confirm)

As with LinkU's text message and voicemail campaigns, these texts and calls are designed to help you build deeper relationships with your clients and SOI. These messages would rarely fall into either of these categories, which is why we recommend not using LinkU's follow up system to "sell" or "market" to your contacts, but keep in touch and build friendships and relationships. However, since we're not lawyers or judges, it is probably safest to consider them promotional.

At first, the TCPA may sound quite scary and intimidating. But remember, it's only designed to cut down on scammers and nuisances. Below are the three main TCPA violations every company should be aware of. 

Remember, thousands of businesses send text messages every single day—and rarely do they run into compliance issues. These rules are targeted to those who abuse the system, call random numbers, cold call lists, etc.

Some judges have rejected the application of TCPA to a case citing no "random" or "sequential" lists of numbers were stored, produced or generated to satisfy the TCPA’s original definition of an ATDS.

Some judges have rejected the application of TCPA on the basis that "human intervention" was used to get the phone numbers into the system – i.e. manual entry, inbound text message request or Web form submission.

Other judgements, like Microsoft’s, have simply rejected plaintiff’s claims by affirming the existence of "prior express written consent" with or without the FCC’s added disclosure requirements.

We do everything we can to make following the rules as simple as possible for you. 

This includes providing web forms and automation to help with the consent and opt-out process easy. We're also implementing new features each month to help with auto-unsubscribing, adding built in consent, double opt-in features and more, etc. 

If we can leave you with just four rules to follow, they’d be the following:

We hope this puts you at ease about using SMS to reach your audience. 

Keep in mind, that almost everything you do as a business can get you sued, (especially in the real estate industry) if you're not taking proper precaution, from copyright infringement, to contract negotiations. Sometimes even though we try to follow every law and be compliant, a mistake can be made and your business can be held liable. 

This is why it is important to have an insurance policy that can protect you, such as Error and Omissions insurance, or General Liability Insurance. However you should check with your insurance provider to ensure TCPA is not excluded.

Either way, it's up to you, simply choosing to not deal with TCPA is completely understandable, but it is not excuse to give up, or stop following up with your past-clients, so here are some suggestions:

You could disable text messaging and/or voicemails from your campaigns altogether, or enable Restrictive Text Messaging and Voicemails. This means texts and voicemails will only be sent to those whom you've manually "checked" off as providing "written consent".

You could replace your text message and/or voicemail events in your campaigns with task events instead. These task events would prompt you on when to send a "manual" text message (we are working on adding this to our mobile app as well for an added ease and convenience). Keep in mind, DNC rules would still apply here for promotional/marketing calls.
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Have additional questions, or need help? Please e-mail [email protected].
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Disclaimer: Please note that this advice and any advice provided by LinkUSystems, Inc. and/or it's employees is for informational purposes only and is neither intended as nor should be substituted for consultation with appropriate legal counsel and/or your organization’s regulatory compliance team.