Dealers NEED to Take the TCPA (Texting) Compliance VERY Serious...
I have a Dealer Group in NJ that just forwarded me an email from the State Dealer Association's Attorney WARNING them that there are MULTIPLE Dealerships wrapped up in Class Action Lawsuits over TEXT Messaging (TCPA Compliance) VIOLATIONS. The Dealer was very distraught and issues an IMMEDIATE CEASE AND DESIST TO HIS ENTIRE Dealer Group from TEXT MESSAGING under ANY CIRCUMSTANCE until their attorneys dig in and make sire they are NOT at risk! What I find is there are so many dealerships out there in clear violation of the TCPA Compliance and are risk for lawsuits... class action lawsuits! What is worse is that some for these dealers have NO IDEA. They think what they are doing is legal because their CRM company or their Text Messaging Vendor says they are legit and compliant. I URGE ALL Dealers to consult with their Dealer Association and their attorneys and CONFIRM that they are 100% compliant and NOT at risk of a lawsuit or fines. TCPA-ctia-messaging-principles-and-best-practices.pdf
Here is some information that I have come across
* This is an article I found online:
When do I need permission to text someone? How do I know I really have permission? Are they contacts or subscribers!?
Did you know that you must legally obtain permission to send a text message to a mobile device?
The latest edition of the CTIA’s Best Practices Guide for SMS Marketing and Communications, released on January 19, 2017, places an additional degree of emphasis on consent and TCPA compliance.
As stated in our terms and conditions and usage policy, 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 transmitted via short code.
The Telephone Consumer Protection Act (TCPA) went into effect in 1991, and it has since been modified to include SMS/text messaging.
In a nutshell, the TCPA stipulates that businesses and/or organizations must receive express written consent from individuals prior to sending any SMS/text messages to them.
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.
There are only a few special exceptions under the TCPA (such as appointment reminders and delivery notifications) that may be subject to exemption. For additional information about compliance guidelines that apply to specific industries and/or audiences, The Data and Marketing Association’s Comprehensive Guide to Compliance is a useful resource.
The TCPA provides for a private right of action and statutory damages and permits class-action lawsuits. Damages start at $500 and go up to $1,500 per recipient for each text message sent.
If you are unsure as to whether your contact list meets the established criteria for consent outlined by the TCPA and CTIA documents referenced (and linked) above, we advise you to consult with your organization’s compliance team and/or legal counsel.
To enable contact import permissions, please complete the following steps:
- Review the documents referenced in this message
- Review your contact lists to determine if they meet the compliance requirements
- Edit your contact lists in consultation with your organization’s compliance team and/or legal counsel
- Email firstname.lastname@example.org with a brief summary explaining how, when, and where consent has been documented for the contacts that you would like to upload
- Include the total number of contacts on your list
A member of our team will review your request and make every attempt to respond within one business day.
If your request is approved, you will receive a confirmation message and instructions for uploading your list as a CSV file into our system.
If your request is not approved, an alternative method for building a compliant contact list (such as keyword opt-ins or web form opt-ins) may be recommended, along with instructions and tips to help you succeed.
Disclaimer: Please note that this advice 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.
** This is the attachment that the Dealer Association Sent to the Dealer Principal (It is from a vendor and seems to be years old:
Today’s reality regarding real time communication is proven in the data. On average smart phone users in the United States send 764 text messages and place 164 phone calls per month. Without a doubt younger users skew the data, but even people aged 55 to 64 text on average 80 times per month and 65+ text on average 32 times per month. Based on this information we can say, “When in Rome do as the Romans do.” Texting has become the most efficient form of communication when immediacy (of a response) is needed.
Why should service advisor, sales person or your BDC text? Put yourself in your client’s shoes. A teacher in a classroom, a worker in the field, a professional in a meeting – all of them can reply to a text much faster and with more convenience than they can answer a call or return a voicemail.
The data supports this as texts are replied to, on average, within 4 minutes. The expectation for a return call to a voicemail is the same day and the expectation for an email is 24 hours. A teacher can text while class is in session, the carpenter can text with work in full swing and a lawyer can text while in a meeting.
Continue reading to better understand the rules as they apply to automobile dealerships in the United States.
Advantage Tec has all the proper DMS integration and texting solutions required for your staff to abide to the rules discussed below.
Do TCPA regulations allow businesses to text customers?
YES, businesses and their employees may market & communicate via text. However, there are rules businesses need to adhere to.
The salient points car dealerships need to know regarding mobile messaging in the United States.
TCPA – Telephone Consumer Protection Act
FCC – Federal Communications Commission
ATDS – Automatic Telephone Dialing System or Auto-Dialer
Text Messages – Text messages are “calls” for the purposes of the TCPA.
- Prior to September 23rd, 2013 you could text based on having an established business relationship with a customer. This is no longer the case. The TCPA rule no longer allows the “established business relationship” clause to circumvent written authorization. This means automobile dealerships must attain “prior express written consent” before telemarketing, advertising or texting from an auto-dialer, prerecorded device or software solution. Written consent must be clear and conspicuous and not be a condition of purchase. To comply, written consent can be attained with a written signature, through email, a website form, or a text message. You may not, however, send an ATDS text message requesting a person to opt-in.
- Prior to July 10th, 2015 FCC Declaratory Ruling and Order the definition of an ATDS or auto-dialer was unclear. The current ruling as of, July 10th 2015, and the most recent language states: “Auto-dialer” for the purposes of the TCPA, is any technology with the capacity to dial random or sequential numbers, regardless whether the technology has the current capacity to make the call in issue & equipment to send Internet-to-phone text messages. In summary, a service advisor or sales person who takes his personal phone and texts a client will not be liable under the TCPA for mobile texting. A dealership’s exposure lies in the inappropriate content a text message may contain. An advisor or sales person that uses an automotive vendor’s texting tool should attain written authorization prior to the software or an auto-dialer initiating a text conversation.
- The biggest misnomer and exposure that Advantage Tec sees with dealers using competitive offerings is the opt-in text. Specifically this means a text that is sent to a customer asking, “May I Text You” without prior written consent. A business cannot text a customer to ask if it is okay to text them without prior express consent. We see CRM vendors and texting vendors break this rule daily. Advantage Tec’s DMS integration assures compliance with these TCPA rules.
Car Dealers’ FAQs:
What are the highlights for car dealerships regarding the most recent TCPA regulations?
- TCPA regulations are aimed at restricting unsolicited phone calls and text messages.
- One must have unambiguous written consent before telemarketing or sending text messages from an ATDS. Oct. 16th, 2013.
- Unsolicited commercial messages (phone & text) must include the ability to opt-out. Jan.14th, 2013.
What are the positives for auto dealerships in the most recent July 10th 2015 ruling?
There is a big positive in the most recent ruling. “Consent for non-telemarketing, non-advertising calls can be demonstrated by the called party giving prior oral or written consent, or by the caller giving their wireless number to the person initiating the autodialed call/text. This ruling is a positive for automotive dealers, as it reaffirms (at least in the nontelemarketing context) previous FCC Orders which recognize that by providing a business with a wireless number, the consumer has given prior express consent to receive a call.”
What is an ATDS or Auto-dialer?
An auto-dialer for the purposes of the TCPA is any technology with the capacity to dial random or sequential numbers, regardless whether the technology is actually used to make the call in issue, and it is not limited to its current configuration but also includes its potential functionalities. An ATDS can also be equipment to send Internet-to-phone text messages.
What is the difference between Text Marketing, One to One Bidirectional Texting and Immediate One-Time Text Messages?
Text Marketing is the name usually associated with a one-time blast with a marketing solicitation to a list of mobile phone numbers. This type of text marketing to customers that have not opted-in or given written consent is what the TCPA is trying to prevent.
One to One Bidirectional Texting is considered a conversation between two people. Although this is not mass marketing under strictest interpretation of the rules prior written consent should be attained for automated May-I-Contact You texts, automated appointment reminders texts, automated welcome texts and automated follow-up survey as an example. For one to one texts initiated by a service advisor written permission to text is not necessary (if no marketing or telemarketing message is in the text). For example, it is okay to ask for repair approval or notify customers that their vehicle is ready.
Immediate One-Time Text messages refer to one-time automated text messages sent immediately to a consumer’s request for information as part of an ad campaign. The automated response to the consumer’s request is TCPA compliant. According to the FCC, this type of text messaging is not “telemarketing” or “advertisement” texting, but merely the fulfillment of the consumer’s request for information. The FCC states that in order to qualify as a one-time automated text message it must (1) be requested by the consumer, (2) be sent immediately in response to a specific consumer request, (3) contain only the information requested by the consumer with no other marketing or advertising information.
Can a service advisor text a one to one personal message using texting software to help them get approval for job repairs or to notify a customer about vehicle status?
Since the repair message is likely not a marketing message, written consent based on the repair order will not be required. The provision of a cell phone number is sufficient consent for service advisors to call/text customers relating to the repair order. An automated text sent on behalf of a service advisor or dealership should only be sent with written consent.
Can a sales person text a customer with vehicle information, pictures or video using mobile messaging software in follow-up to a potential purchaser’s visit to the dealership if the potential purchaser gave the sales person their mobile number?
Text sent using a software solution will likely be considered by the FCC as an autodialed text message. The text message might also be considered a telemarketing message for which written consent is required under the TCPA.
Can a dealership follow up on an email lead with a text to that person?
No this is a violation of the TCPA rule. Express consent on the lead form or written consent is required.
Can a dealership follow up on a phone lead with a text to that person?
No, under the strictest interpretation this is a violation of the TCPA rule. Express consent on the lead form or written consent is required. However, courts may rule that a person leaving a dealership a voicemail probably wants to be contacted. If the response is timely and not telemarketing based it’s not likely to be a TCPA issue.
Can a dealership follow up on a chat lead with a text to that person?
No, this is a violation of the TCPA rule unless you receive written consent during the chat. The dealership must have written confirmation in the chat asking if they can call or text the number provided.
Can a dealership follow up on a text lead with a text to that person?
It is unlikely that written consent will exist, so sending a text to the person under the strictest interpretation of the TCPA is not allowed. However, common sense and the initiation of a text communication would indicate they are expecting a response to their text. As long as the response is timely, includes opt out instructions and is not telemarketing in nature then it is not likely to be a TCPA issue.
Can a dealership initiate an outbound text to a mobile phone number obtained from the DMS or CRM?
Yes if written consent was received from the person with the entry of the phone number into the DMS or CRM. As outlined above, a service advisor has latitude to text one on one if it is not a telemarketing text without written consent. This is not the case for a sales person.
Can a dealership initiate an outbound text to a mobile phone attained from a marketing list or other mobile phone list?
No. This is text marketing and written consent is needed – dealers should NOT do this.
How can a dealership show and track written consent?
Your texting solution provider should be able to show electronic written consent documentation and produce records of written consent.
Can an ATDS text a customer and ask if it is okay to text them or ask them to opt-in?
No. You cannot text a customer to ask them if it is okay to text them without prior express
What about Internet-to-Phone Messaging?
The FCC addressed the status of Internet-to-phone text messaging and qualified this technology as an auto-dialer under the TCPA. This is technology that allows a party to send an email to an address that combines a recipient’s mobile telephone number with the mobile provider’s domain name resulting in the delivery of an email message. Such a text requires prior written consent.
Are there any exceptions to the TCPA texting rules?
The FCC order has granted limited exceptions to TCPA liability for certain free “proconsumer” calls or text messages about time-sensitive financial issues or health care messages.
What are the fines or violations fees?
If there is a violation, the statutory penalty is $500 per violation (call/text). If a plaintiff can show the violation was knowing or willful a court can increase the penalty up to $1,500.
Why are these TCPA regulation so complicated? Why do I hear different rules from different vendors?
On July 10th 2015 the FCC issued a 166 page Declaratory Ruling and Order. The rules are subject to interpretation. With time the courts will determine the interpretations in the rulings. A recent example is the summary judgment in favor of defendant Shac, LLC. The court determined that the promotional text messaging sent by Shac involved human intervention and therefore was not an auto-dialer for TCPA purposes. So, despite the FCC increasingly expansive regulatory action against telemarketers, the court has applied more reasonable standards in interpreting TCPA regulations.
How do I know which car dealership mobile messaging software solution providers are TCPA complaint?
The texting software vendor can only help you achieve compliance with proper process, education and software. It is the dealership that must be complaint; a good software solution will guide personnel with screens that allow or do not allow messaging based on written consent.
What should every dealership do to practice safe texting?
- At the point of sale collect written consent from the customer allowing you to text them in the future.
- At the point of service or when a customer brings in a car for service or repair collect written consent from the client.
- Attain written consent on website forms and chat. Whenever you capture phone numbers in lead forms or in person make it part of the dealership process to attain the customer’s consent to be contacted via text messages.
- Make sure to honor opt-outs. Offer “text stop to end” in messages sent and make sure your mobile messaging vendor blocks unsubscribed numbers from all future text messages.
Are TCPA regulations something a dealership should discuss with their attorney?
Yes. This document does not provide legal advice. It has been written by Advantage Tec to help businesses better understand TCPA & FCC rules. The reader of this document should not rely legally