Earlier this week, I was waiting in line at a national drugstore chain (I won’t say which) and I heard the cashier ask the customer in front of me, “Is it okay for us to send you promotional text messages at that number?” The customer said yes, the cashier pushed a couple buttons, the transaction was over, and that was that. As someone who is well-versed in the TCPA, I had to bite my tongue to keep from dispensing some unsolicited free legal advice about the upcoming “TCPA cliff” and the dangers of the approach apparently utilized by the store to collect phone numbers for its text messaging list. While the store might have an argument that commercial text messages sent to numbers collected in this fashion before October 16, 2013, are acceptable, there is no doubt that this practice will not be an acceptable after that date. Let’s hope they have a plan in place to educate their employees nationwide – quickly.

You should be nodding in agreement right now. If not, your company may be one of many that are not be ready for the fast-approaching date on which the newest rules issued by the FCC related to the TCPA go into effect – sometimes called the “TCPA cliff” because after that date, many of the exceptions and defenses for telemarketers fall away. After October 16, 2013, no telemarketing call (a term that, at least according to the FCC, includes text messages) may be made to a consumer’s cell phone using an automatic telephone dialing system (“ATDS”) without prior written express consent. This means that consent can no longer be inferred from existing business relationships and/or by the consumer’s mere provision of the phone number. And that question in passing from the drugstore clerk? Forget about it – the written consent must be clear and conspicuous, and must:

  • Identify the company to whom consent is being provided (and if the data will be shared with more than one company, each company must be specifically identified).
  • Include the consumer’s cell phone number.
  • Indicate an affirmative agreement.
  • Disclose that the consumer is authorizing the seller to engage in telemarketing/mobile marketing.
  • Disclose that the calls will be made using an ATDS.
  • Disclose that the consumer is not required to provide consent as a condition of purchasing goods or services.

This process can be done electronically, provided the requirements of the E-SIGN Act are met. Notably, the existing consent rules will be maintained for non-telemarketing, informational calls.

The implications of these new rules could be significant, depending on how a business uses customer phone numbers. The ability of companies to upsell via telemarketing or text messaging to existing customers will be eliminated unless the customers have given written express consent. And the ability of lead generation companies to collect data and resell it also will be severely constrained because these companies not only will need written express consent, but they will need to know (and inform consumers of) the identity of the lead buyers before the data is even collected.

Ideally, all companies who rely on telemarketing and mobile marketing should implement action plans to obtain as many valid mobile opt-ins as possible before October 16, 2013. Otherwise, there is significant risk of regulatory action and/or class action litigation after the mobile industry goes over the “TCPA cliff.”