Table of Contents

Who this guide is for

What is "The TCPA"?

What does the TCPA cover?

Complying with TCPA

Express Consent vs. Express WrittenConsent

Consent is not a condition of purchase

Revoking consent

Quiq: Who we are

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Examples of best practices 10

Who This Guide Is For

This guide is for any company that currently uses or isconsidering using text messaging as a way to engagewith its customers. This guide is a critical resource foranyone in the organization who uses text messagingas a way to communicate with customers. The purpose of this guide is to provide details aboutthe changes to the Telephone Consumer ProtectionAct (TCPA) enacted on October 16, 2013. Changes tothe law requires companies to obtain appropriateconsumer consent prior to sending them marketingtext messages. This guide will also present observations of bestpractices as it relates to the process of obtainingconsent. We intend for this resource to be directionalguidance and recommend you seek the advice oflegal counsel to ensure you are in full compliancewith TCPA laws.

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What Is The TCPA? The Telephone Consumer Protection Act was adopted byCongress in 1991 and is a federal statute. The FederalCommunications Commission (“FCC”) is one of two federalagencies authorized to make rules under the TCPA. The otheragency is the Federal Trade Commission (FTC). The Federal Communications Commission (FCC) enforces theTCPA, and interprets the law in ambiguous cases. However, theTCPA also includes a private right of actions, which means thatconsumers themselves can file individual or class actionlawsuits against TCPA violators. The TCPA is an extremely strong statue and its protections aregrowing almost on a daily basis.  Today, this law is mostrelevant to telephone calls and text messages to cellulardevices, calls to residential lines from an Automatic TelephoneDialing System (ATDS), and the use of pre-recorded or robo-calls. Organizations that use this kind of technology to engage withconsumers must have certain policies and procedures in placein order to avoid violating TCPA. In the sections that follow, we'lldiscuss the main provisions of the TCPA as it relates to wirelesstelephone numbers, the two types of required consent, andactions we've seen our clients take in order to be compliantwith the law.

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What Does The TCPA Cover?

TCPA apples to all system-launched calls includingtelemarketing, text messages, and pre-recorded calls

The law prohibits contact with consumers unless thecompany has "prior express consent" to contact theconsumer

The type of consent needed depends on the thetechnology, type of device, and the content of themessage.

The TCPA was originally created to protect consumersfrom unsolicited telemarketing phone calls. Today, anycompany that seeks to send texts has to comply with TCPA. Here's what the law covers:

Texts or calls to a mobile phone using a generic orpre-recorded message without permission, and

Placing telemarketing calls or texts to consumersafter they opt-out.

The most common violations to TCPA are:

Penalties for violating TCPA The consequences for violating TCPA laws can bequite substantial. When TCPA violations are broughtto court by consumers who received text messagespam, the violating company could be finedstatutory damages of $500 per call or text. If the conduct is considered willful and knowing,meaning that TCPA violations were knowingly doneand the company turned a willful blind eye to theactions, the courts may award Treble damages ashigh as $1500. It is up to the courts to decide what iswillful and knowing conduct. Keep in mind, the above penalties would result froma lawsuit. There could be additional fines imposedby the FCC or FTC.

Interesting Fact:In 2007, there were

14 TCPA cases inFederal Court. In

2018, that numbergrew to 3803.

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Complying With TCPA

Under TCPA, businesses are prohibited from callingany number that appears on the state or Federal DoNot Call (DNC) lists established by the law. In addition,companies cannot call or text anyone who has beenasked to be added to their own internal list of contactswho have requested not to be contacted.   When TCPA was established in the 90's, people weregetting a lot of calls on their landlines interruptingdinnertime. Also during that time, all calls to cellphones, even incoming calls, incurred a charge. Sincethere were rising concerns that telemarketingcompanies would shift calling costs to wirelessconsumers, Congress put extra protection on callsplaced to cell phones. Although less intrusive, textmessages are viewed just like phone calls in the eyesof the law, and as a result, sending a text messagerequires you to comply with TCPA.  Consent is at the center of TCPA compliance. Thelevel of consent required depends on the content ofthe message, who you're calling, and how you'recalling them.

The key requirements that drive most of thelitigation under TCPA can be segmented in twocategories: 1) Calls or text to wireless numbersThe law prohibits calls or texts to wireless phonenumbers using auto-dialed, pre-recorded, orartificial voice calls, except in the event of anemergency or "prior express consent". This appliesto all calls and messages regardless of the content.In 2012, the FCC adopted additional "written consent"rules that apply to telemarketing calls.

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Complying With TCPA (cont.)When sending a message via text, it's important toreceive the appropriate levels of consent. The onlyexemption is when a consumer initiates a textconversation with your business. This implied consentto message them holds as long as your responseremains within context. When it comes to consent, the two most importantthings you can do to maintain compliance is to: 1) make sure you get the consumers consent inwriting, either the good ol' analogue way with paperand pen, or digitally 2) stay on top of the accuracy of your contact list,ensuring you have the most up to date contactinformation and stop requests prior to each send. The courts have said that the defendants have theburden of proof for the consent. Meaning, as acompany that sends text messages, you have to comeforward with your evidence that the person you sentthe message to provided consent to receive thatmessage.

2) Calls to residential numbersThe law prohibits pre-recorded or artificial voice calls toresidential land lines without "prior express writtenconsent". The law doesn't apply to calls that aren'tsolicitation or telemarketing calls, or those not made fora commercial purpose. So, unlike wireless numbers, this law only applies if themessage is marketing-related and is not concerned withauto=dialers. Another difference is that calls toresidential numbers are a bit more permissive, allowingemergency calls, tax exempt non-profit organizations,and healthcare calls subject to HIPAA. For the purposes of this ebook, we'll focus on textmessages sent to wireless numbers. For manycompanies, the most confusing part of this provision isthat TCPA applies to both marketing and non-marketing messages. You may think that because your message is notmarketing-related, since you are simply reaching out toyour customers, that the statute does not apply to you.This is not the case. 6

Express Consent Vs. Express Written Consent

Encouraging perspective and current customers toenroll for text messaging to receive updates onimportant news, information on upcoming events,and special offers related to your business.Asking for the customer's cell phone number duringthe checkout process or as a follow-up to a sale. Thefact that a customer provides their number andsigned up allows the brand to contact them via textand phone in order to successfully execute businesswith that customer.

When consent is required, two types of “prior expressconsent” under the TCPA may be applied. 1) Prior express consent This type of consent is required to place auto-dialed,non-solicitation calls or texts to a cell phone. This typeof consent can be written or verbal. Although it's notdefined in the original 1991 statute, several rulings havedefined what "prior express consent" means.  It's best to check with legal counsel to understand theideal way to obtain express consent . Here are a fewexamples that demonstrate how a consumer can giveprior express consent:

2) Prior express written consent, This requirement is a heightened level of consentthat must be evidenced by a written agreement. It isimportant to note that the consumer's writtenconsent must include the consumer's phonenumber and signature. The written agreement requesting the consumersconsent must include a disclosure that is "clear andconspicuous" and informs the consumer signingthat: 1) by signing the agreement, the consumer isauthorizing auto-dialed telemarketing or advertisingcalls or texts, and 2) the consumer is not required to sign theagreement as a condition of purchasing anyproperty, goods, or services. To expand on our previous retail example, thecompany that received the express consent to sendorder status updates must get express writtenconsent to send that same consumer marketingmessages.

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Consent Not a Condition of Purchase

Many companies will offer terms and agreements,particularly during a check out process. As a consumeryourself, you may have seen "consent is not a condition ofpurchase". The TCPA requires several different phrases inagreements presented to consumers, and this is one ofthem . As previously mentioned, this disclosure must be includedin the agreement presented to the consumer. For anybrand that sells goods or services, you must make thataffirmative representation to consumers.

The statement means that consumers aren't requiredto provide their phone number or give their consent toreceive auto-dialer SMS messages before they areallowed to make a purchase with a seller. Not only isthis statement required by law, it's also good businessto allow the consumer to complete a transactionwithout presenting any potential obstacles, Any company that  doesn't disclose this required term,in their written terms and condition agreement withthe customer, faces the risk of violating TCPA. Ifbrought to court, the plaintiff's attorney could arguethat the absence of this statement makes the entirewritten agreement invalid.

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Consent doesn't expire, per se. Once the consumer hasgranted consent, it doesn't have a shelf life or "gooduntil" date, but consumers can revoke that consent,Just as consumers can "opt-in" to receive messages,they are also entitled to "opt-out" or revoke thatconsent at any time. Retailers need to opt-out consumers who withdrawtheir consent through reasonable means. There's stillsome debate within the FCC to interpret what"reasonable" means, but there are some standard waysin use today that are considered best practice.

Revoking Consent

Although stop requests are honored through carriers,we help companies go a step further to honor theircustomers' requests. Quiq enables you to bettermanage your conversations by recording and sharing arecord of in-conversation stop and opt-out requests.Meaning, Quiq sends you a list of all customers thatopt-out of text messages which take place during aconversation within the Quiq platform . Re-assigned Numbers It's fairly common to take your number with you in theevent you switch mobile carriers, however, there areinstances when a consumer provides consent to acompany with one number and then surrenders thatnumber to be reassigned.  If this happens, you must gain consent from thatconsumer again to text their new number. What's more,you must comply with any opt-out requests receivedfrom the new owner of the number.

The use of help/stopinstructions is a standardand common practiceamong companies. If theconsumer texts "help" to acompany, they receiveassistance in a reasonable amount of time. If the consumer texts "stop" then yourbusiness should immediately stop sending any texts tothat number until consent is granted again.

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Download a copy of the TCPA rules directly from the FCC website:https://www.fcc.gov/sites/default/files/tcpa-rules.pdf

Include Help/Stop instructions within your message

Promote the benefits of text messaging and make it easy forcustomers to find this new channel among their contact options

Examples of Best Practices

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Pier 1 highlights the option to text them withintheir Help Center. Implementation of messagingtook only 2 weeks and within the first 30 minutesof going live, Pier 1 received positive feedbackfrom one of their customers: "Wow, I had no idea that Pier 1 had a textingoption and it was so easy. I am using this fromnow on. Thank you!"

Examples of Best Practices

Pier 1 also clearly and thoroughlyoutlines their SMS/Text ProgramTerms & Condition on theirwebsite:

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Conclusion

Messaging is affordable, convenient and efficient. It deliversfast service and has high customer satisfaction rates. Thereare plenty of reasons companies and consumers love thischannel. Retail is an industry that holds an abundance of potentialfor messaging, from providing pre-sales support for higherconversions, to sending order and shipping updates, toproviding customer support. Maintaining TCPA complianceensures that your company is able to engage with yourcustomers over this channel. There are significant benefits for your company to usemessaging that range from cutting costs to driving revenue.Following these best practices, and seeking the advice oflegal counsel to ensure you comply with TCPA law willallow your company to confidently implement messaging.  

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Who We Are

Quiq helps brands present their customers withconsistently jaw-dropping customerexperiences across SMS/text messaging, richmessaging, web chat, and social channels.With Quiq’s Conversational EngagementPlatform, companies can easily orchestratecommerce and service conversations involvingboth bots and humans. We think businessesshould engage with their customers in thesame ways people communicate with theirfriends. When customers can reach you how or whenthey want to reach you, they are happier.Customer satisfaction is higher for messagingchannels than voice and email. Your companywins too, because by converting phone calls totext, you’ll be able to serve more customerswith fewer resources. To be Quiq means to be on the leading edge ofcustomer engagement. QUIQ.COM

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