Window to the Law: TCPA and Texting

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Window to the Law: TCPA and Texting: Transcript

Sending text messages is a fast and effective way to reach business partners, clients and potential clients, but did you know the Telephone Consumer Protection Act, or “TCPA,” regulates most such text messages? Without a firm understanding of the TCPA you and your real estate business may be at risk.

Congress passed the TCPA in 1991 in response to consumer complaints alleging abusive telemarketing telephone calls to private homes. In addition to its application to telephone calls, however, the TCPA also prohibits text messages to wireless numbers made using automated telephone dialing equipment without adequate consent.

The TCPA creates a private right of action for any person alleging a violation. And because the TCPA is a strict liability statute that permits assessment of penalties of up to fifteen hundred dollars per violation, plaintiffs’ lawyers have created a lucrative business model filing class action TCPA lawsuits.

For example, a Florida-based real estate brokerage is currently defending against a TCPA class action lawsuit in Federal court in Florida, alleging the brokerage sent text messages without obtaining required consent.

To ensure your business avoids such claims, you must understand how the TCPA applies to text messages you may send.

The TCPA covers all text messages sent using autodialing equipment, which means equipment that can store or produce telephone numbers to be called using a random or sequential number generator. Put simply, this means that most every text message sent by means other than by personal cell phone will fall under the TCPA.

But the TCPA regulates telemarketing text messages and non-telemarketing text messages differently.

Telemarketing text messages are those made to solicit or encourage the purchase or rental of, or investment in, property, goods, or services. The TCPA requires a telemarketer to first obtain “prior express written consent” from those persons receiving such text messages.

Prior express written consent requires the message sender and the recipient to enter into a signed agreement that clearly and conspicuously discloses the recipient’s permission to receive text messages from or on behalf of the sender. The agreement may not condition the recipient’s acceptance on the sale of goods or services.

Non-telemarketing text messages, on the other hand, require only “prior express consent,” that is, not written consent.

Prior express consent is not defined by statute or regulation. But the FCC has indicated that there are at least three different methods by which a text message recipient may give prior express consent: 1) verbally; 2) in writing; or 3) by providing a wireless number.

Non-telemarketing text message senders relying on this last method of prior express consent must obtain the wireless number directly from the recipient and not from a third party. Further, the text message recipient must provide his or her wireless number voluntarily without any restrictions on the sender’s ability to send the recipient future text messages.

No matter the form of consent, the text message sender bears the burden of proof to demonstrate the sender complied with the relevant consent requirements. Therefore, prior express written consent agreements and prior express consent conveyances should be clearly stated, well documented, and preserved. Even where verbal consent is sufficient, following up in written form to document such consent is prudent. It is even a good idea to include language on forms where wireless numbers are provided, stating that the recipients providing their wireless numbers agree to receive text messages from or on behalf of the sender.

Notably, text message recipients may revoke consent through any reasonable means and senders may not limit the manner of revocation. The right to revoke consent is not defined by statute or regulation. Instead, the FCC has determined that it will look to the totality of the facts and circumstances to determine if the revocation method is reasonable. It is therefore important to provide industry-accepted means of revocation in your text messaging program. One such method that you have probably seen is texting the word “STOP” in response to a received text message. Other easy to follow opt-out procedures may also be used. And a record of all revocations or opt-outs should be maintained and regularly updated so as to prevent unintentionally sending errant text messages.

Don’t let the TCPA or fear of litigation stop you from using text messaging to better your real estate business. But be knowledgeable and build a fully compliant text messaging program so that you can continue to be successful.

Thank you for watching Window to the Law.

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