Why it matters: During our hugely successful “Avoiding TCPA Pitfalls: Essential Guidance for Retailers” webinar this summer, we received dozens of questions from attendees, most of which we were not able to address during the closing minutes of the presentation. But, we held on to the questions and present below responses to those that we felt would be most relevant to readers. Please note that these are general responses and are not intended as, and should not be construed to be, specific legal advice. Should you have any specific follow-up questions on these responses, please reach out to the webinar speakers: Manatt partners Marc Roth and Christine Reilly.
Q: I thought mobile phones always trigger the TCPA even if manually dialed? Especially in certain states? Not exactly. The TCPA is only triggered when communicating with consumers on their mobile phone when using an autodialer. That said, the FCC’s July 2015 rulemaking declared that a dialing system that is used to manually dial numbers may be an autodialer if it has the current or future capacity to autodial. With regard to state laws, there are about half a dozen states that prohibit calling or texting a mobile device without the consumer’s consent, regardless of whether an autodialer is used. But this restriction only applies to commercial, and not informational or transactional, communications.
Q: If there is time, could you please address TCPA applicability to texts delivered to cell phones? The FCC has expressly stated that text messages delivered to cell phones are treated as calls under the TCPA.
Q: If you use a prerecorded message that is only informational in nature (e.g., fraud prevention), does prior express consent need to be obtained? It depends on where the call is terminated. If the call is to a landline and contains no marketing content, no consent is required. On the other hand, if the call is to a mobile phone, and is purely informational, the caller will still need the recipient’s express consent, which may generally be satisfied by the caller receiving the number from the call recipient.
Q: Do autodialed calls to mobile numbers assigned to a business fall under the TCPA? For calls to “residential” numbers, can we assume “residential” means a call to a consumer landline phone? Unless expressly exempted, all autodialed calls to a mobile phone require some level of consent, even if to a business. The TCPA and FCC rules do not distinguish between consumer and business lines when calling mobile numbers. This distinction is only relevant in regard to do-not-call regulations, since these rules only apply to consumer numbers. However, as some people use a single phone line for both personal and business purposes, a more detailed analysis of the source and use of the number is required in order to determine whether the DNC rules apply.
Q: Is the company required to determine whether the consumer’s phone number is a landline or cell phone? Or is this information provided by the consumer? A company must itself determine whether a number terminates with a landline or mobile phone. As the TCPA is a strict liability statute, even if a consumer provides her mobile phone number in response to a request for a home (landline) phone, a call to that number will still be treated as a call to a mobile device under the TCPA.
Q: Can voice recordings giving consent to be marketed (via inbound call) comply with the ESIGN Act? Yes, under FCC rules, a company may obtain a consumer’s express written consent for marketing calls via an inbound call if conducted in accordance with the requirements of the ESIGN Act.
Q: Does a check box work as a signature for prior express written consent (PEWC)? A check box may satisfy the FCC regulations for prior express written consent if the box is unchecked and is accompanied by the applicable FCC consent language in accordance with the ESIGN Act.
Q: Is it imperative to be able to store and produce (if need be) the check box that is used for the consumer to affirmatively agree to receive telephone calls? It is important to maintain some proof of a consumer opt-in in the event a call is ever challenged. While the best proof may be a copy or screenshot of the exact web page a consumer completed and submitted for this purpose, if this is impossible, it may be acceptable to maintain a file of the opt-in that includes the information that the consumer provided as well as a date and time stamp of and IP address associated with the opt-in.
Q: A retailer announces via the in-store intercom: text COUPON to 12345 to get 10% off your purchase today. Is this allowed? Can the response include an invitation to subscribe via web form, e.g., Your 10% off code is XYZ. Click to subscribe: bit.ly123? Under the FCC’s July 2015 ruling, a retail store may instruct consumers to text a word to a short code to obtain a discount code by reply text without including the required language for prior express written consent. Under the FCC rules, the reply text must only contain the requested information (i.e., the discount code) and may only be used once. Including any other information in the reply text (such as an invitation to subscribe to the retailer’s savings or loyalty program via a web link) may present some risk as such content may be viewed as exceeding the consumer’s specific request.
Q: What are your thoughts on placing express written consent language below a “submit” button? The FCC regulations require that express written consent language be presented clearly and conspicuously so that it is not missed by consumers. Placing this language below a submit button presents some risk of not satisfying this requirement if displayed in a way that may be missed by the consumer.
Q: Does consent override DNC? For example, customer gives PEWC on retailer website but that number is also listed on the national DNC. It depends. If the PEWC language makes clear that the consumer is agreeing to receive marketing communications to a telephone number that is on a DNC registry, then yes, the consent will override the registry listing.
Q: What about making service calls to numbers on an internal DNC list? Pure service calls are exempt from the internal DNC regulations. DNC applies only to marketing calls.
Q: If customers provide PEWC after their request to be added to the internal DNC registry, should they be removed from the internal DNC registry? The PEWC opt-in may, depending on its wording and the context in which it was given, trump the internal DNC request.
Q: Does affirmative agreement need to specifically state “I agree/consent” or does something like “reply YES to receive msgs” constitute an affirmative agreement for text messages? The TCPA and FCC regulations do not specifically dictate the precise language that must be used to obtain a consumer’s express opt-in. But the language must clearly and unambiguously reflect the consumer’s desire to opt in.
Q: Are text messaging platforms liable under the TCPA? They are just message conduits. A number of courts have held and the FCC has ruled that texting platforms will not be liable under the TCPA as the “maker of a call” in certain circumstances, particularly when users of the platform (and not the platform itself) control the content and transmission of the messages. Said otherwise, the more involvement a platform operator has in the message development and transmission process, the greater chance it may be found responsible under the TCPA.
Q: With text messages, can the consent be asked for in that first text for future texts or does that bump it out of the exception? If you are referring to the one-time exception to respond to a consumer’s specific request, the FCC was pretty clear in its rulemaking that the one-time response must only include content that responds specifically to the consumer’s request. That said, the ruling responded narrowly to a petition that sought the one-time exception for a single purpose, so it remains unclear whether seeking additional consent would be acceptable. On balance, given the risks associated with violating the TCPA, it would be prudent to only include responsive content.
Q: Do you need consent to make a marketing call without an autodialer? What if you don’t know if it is a mobile or landline phone? As noted above, the onus is on the caller to determine whether a number is associated with a mobile or landline phone. Relying on how a consumer identified her number is not a defense to liability under the TCPA. If a marketing call is made without an autodialer and does not introduce a prerecorded message, no consent is required for TCPA purposes, but certain states do still require a consumer’s consent.