TCPA tidal wave will affect how firms engage with clients

When a new communications channel is widely adopted by the public, it will eventually be used for advertising. Consider radio, TV and, of course, the telephone. The Telephone Consumer Protection Act was put into place in 1991 by the FCC to address a growing torrent of marketing phone calls. When texting grew prevalent, it fell under the jurisdiction of the TCPA. 

Now, more than 30 years later, we’re experiencing a tidal shift in the regulatory environment around the TCPA, with far-reaching implications for businesses that use text messaging for advertising. This could increase the risk of a class-action lawsuit — an expensive and time-consuming affair. In anticipation of this, firms will need to reconsider the way they obtain permission to solicit prospects in a scalable way. This means establishing a long-lasting and stable approach that won’t be subject to this challenging regulatory environment.

To solicit new customers at scale, firms can’t manually type in each phone number; they must automate the process, which is where “auto dialers'' come into the picture. Central to the changing regulatory landscape, auto-dialer software automatically generates phone numbers in some random or sequential manner, then sends a text message to that number. Left unchecked, this results in a tremendous number of spam messages being sent. 

There are nuances around whether numbers are stored or produced, but there is no nuance on this: To be considered an auto dialer, the software must use a random or sequential number generator. This means that firms can still manually text prospects for the purposes of solicitation as long as they have some connection to the prospect.

That connection takes the form of “consent,” which can be obtained on an explicit or implicit basis. When a prospect agrees to be texted through some clear input method, that’s explicit consent. Historically, the easiest version of this is an initial outreach text asking the prospect whether they opt in to receiving marketing text messages, to which the recipient would ideally respond “yes.” Implicit consent assumes you’ve received the prospect’s phone number through some other method — for example by getting their business card at a conference. That assumption provides coverage for firms to text under the TCPA, as it’s presumed the prospect gave permission to be texted by providing their phone number to the firm.

While the TCPA is at the federal level, the majority of recent developments have been at the state level. Many states have implemented their own versions of the TCPA, with vastly different terms and definitions. Some of these mini-TCPAs are similar to the federal TCPA, but some are much stricter. And they’re changing all the time.

For example, Florida initially enacted the FTPA to ignore the TCPA’s requirement to include a random or sequential number generator. An auto dialer uses “an automated system for the selection or dialing of telephone numbers,” and unsurprisingly, the vagueness around that definition resulted in much confusion. That is, until it was amended to revert to closely mirroring the TCPA, changing the “or '' to an “and,'' greatly clearing up the requirements to meet the definition of an auto dialer. The shifting regulatory environment and changing requirements are difficult to operate in, as firms must continuously reshape their approaches to obtaining consent. 

Other states are even more restrictive. A common way of getting consent is via initial text message. Most states allow firms to ask if it’s OK to text, with opt-in functionality built into their platforms. But that’s not always the case. In some states, for example, sending that initial text is itself considered a solicitation, requiring firms to obtain consent through other means. 

While obtaining consent via text message is still a valid tactic, a rapidly evolving regulatory environment invites questions on its potential shelf life. To get ahead of this, firms must consider enforcing a more durable and robust process for obtaining consent. From a regulatory perspective, obtaining consent through other means — perhaps by allowing inbound leads to opt in to texting while visiting the firm’s website — is a robust policy. A simple checkbox can register that the lead wants to be contacted (indicating consent), which can feed into a CRM. If integrated or embedded with a texting platform, a welcome text can even be automatically sent. 

Forward-thinking businesses may also incorporate additional benefits, such as integrating with other systems and platforms in this process.

The fear of a class-action lawsuit is real nowadays, but with good planning, and partnership with technology platforms that are ahead of developing functionality for this environment, much of the risk can be effectively mitigated. 

Bill Simpson is director of compliance at Hearsay Systems.