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Telephone Consumer Protection Act Compliance for Nonprofit Organizations

Derek: Hi, everyone, Derek Johnson with tatango.com. Today I’m at Innovista Law, home of the
TCPA Defense Force. And I’m sitting down talking to attorney
Ernesto Mendieta about nonprofit compliance for text messaging, and specifically the Telephone
Consumer Protection Act or the TCPA. So what do nonprofits need to know about complying
with the TCPA when they send text messages? Ernesto: Well, nonprofits have a special treatment,
so any message that they send have a specific regulation under the TCPA. First, the FCC has exempted them from their
requirement of scrubbing their numbers against the National Do Not Call Registry. Normally, under the TCPA for any telephone
solicitation, you cannot call the numbers that are registered in the Do Not Call Register. But nonprofits can skip that step. Derek: Okay, because, and maybe explain to
me, nonprofits they don’t need to actually to opt-in to receive text messages from the
nonprofit or how do people in a nonprofit opt-in? Ernesto: Correct there’s, here we’re talking
about consent of when to receive. And we have distinguish between residential
and wireless. For residential, the consent requirement goes
down and you do not need previous consent to talk, to get a call by or on behalf of
a nonprofit. For wireless and text messages to cellular
phones, the consent requirement and level is also lowered. Under a normal text message, a telemarketing
message to a wireless phone, you would need express written prior consent. Derek: Okay so if you’re like a brand or
retailer sending a coupon, prior express consent, written consent. Ernesto: Prior express consent, yes. For nonprofit you can avoid the greeting part. So it brings down the requirement to just
express prior consent. So you, if you gave your telephone number
to a company, to a nonprofit, sorry. We’re talking about a nonprofit, it’s
understood that you consented to receive information about that nonprofit. Derek: Okay, so if I was interested in nonprofit,
I gave my email address, I filled out some info, I put in my phone number, and it didn’t
specifically say they were gonna text message me, it just, I was giving my phone number
to the nonprofit, maybe I support them, they could text message me? Ernesto: Yes. Derek: Okay, so that’s why you would have
to if you were a brand, you would have to scrub against maybe the Do Not Call list. But nonprofits they don’t have to. Ernesto: Yes, correct. The other requirement that they’re relieved
from is having their company-specific Do Not Call list. Normally what companies do is, whenever they
receive an opt-out request, they have a list in which it says these numbers we do not have
to call. Derek: So in our system, we have like the
unsubscribed status. So when someone subscribed, and they unsubscribe,
we have to unsubscribe them. Ernesto: Yes. Nonprofits do not have that obligation. They can do it best practices, to avoid calling
people. Because if they’re a nonprofit and they
are trying to look funding and they’re calling someone that already asked them to stop, it’s
gonna be an issue and there is not gonna be any funding. Derek: Exactly they’re not going to be happy. Ernesto: They wanna achieve their purpose. Derek: Yeah, because at the end of the day
it’s really the consumer that matters the most. Like there is the law, but then also what
makes sense for people so you’re not frustrating them, or you know, making them angry at your
nonprofit. Ernesto: Yes, correct. Derek: So there’s two different things. The first one was. Ernesto: The Do Not Call registry. They don’t have to scrub their numbers against
the registry. And the second is the lower consent requirements,
they don’t need it in writing. Derek: Okay so you don’t have to like, what
we call double opt-in, where, you know, they’re texting out their phone. Now they can, right, a lot of nonprofits have
double opt-ins, and they opt-in people. But you’re saying that it’s not required
by the TCPA. Ernesto: Correct. Derek: An exemption, is that what it’s called? Ernesto: Yes. Derek: Okay, so they have an exemption to
doing that. Ernesto: Yes. Derek: That’s interesting. Ernesto: Yes, and the other thing that we
have to keep in mind is that the messages need to be made by or on behalf of the nonprofit. So they can hire agents that are looking for
funding for the nonprofit and even those third-party agents that are calling on behalf of the nonprofit
will have the same exceptions. Derek: Oh, interesting, okay so it could either
be the nonprofit or the agents, but they have to be representing the nonprofit. Ernesto: Yes. Derek: It can’t be just like, “Oh, we
do business with those people. And now we’re text messaging them about
Chipotle or some other company.” Ernesto: Yes, it has to be on behalf of the
nonprofit, and with a purpose relating to that. Derek: Relating to it, okay. Ernesto: Yes. You can’t add like, “Oh, I’m calling
about this nonprofit, but let me tell you about this other product that I’m selling.” Derek: This Ford car that’s amazing, or
something. Ernesto: Yes, that will get you in trouble
with the FCC, the courts will see through it, and know that the main purpose of that
call was actually to do some telemarketing. Derek: To market or sales. Ernesto: Yes. Derek: Now what nonprofits, I know there is
an exemption if you’re not doing marketing or sales type text message just in general. For nonprofits, what if they are selling something? What if they are technically, they’re always
marketing something, they’re marketing a cause, they’re marketing give me donations. So all that is exempt? Ernesto: No, it needs to be related to their
nonprofit purpose. If you entered an area of marketing, or trying
to sell a product or trying to promote a service, you will be treated as telemarketing. Derek: Okay so promoting, like if I’m a
nonprofit and I promote a car, that would 100% be, you know, bad. Ernesto: Yes, it will end up being considered
as solicitation. Derek: Okay but if I’m selling, if I message
my nonprofit members and I say, you know, we have a new t-shirt out, that has the name
of the nonprofit on the t-shirt and we’re raising money by selling these t-shirts. Is that kind of a gray area or? Ernesto: Not a gray area it’s subject to
analysis if it comes to the FCC or a court to actually decide. But the example you’re saying for me, it’s
crystal clear that it’s actually for the nonprofit purpose, so… Derek: Because it’s about that nonprofit’s
business… Ernesto: Yes, and it involves the selling
of the shirt but it’s part of the funding of the nonprofit. Derek: Okay, interesting. Would you recommend nonprofit, no matter really
what, to always consult an attorney? Ernesto: Yes, I would always do. Derek: Because it does sound like there are
a lot of nuances here. And certain nonprofits, I’m guessing, are
not exempt maybe? I don’t even know if that’s correct. Are there like certain designations of a nonprofit
that are exempt? Ernesto: There’s several categories. And they would all fall into the same one. Derek: Oh, so they all fall in? Ernesto: Yes. They would all fall in… Derek: As long as you’re a nonprofit. Ernesto: Yes. Derek: Okay, interesting. Well, again nonprofits if you’re listening,
text messaging is great but, you know, there are some exemptions it makes it a little easier. You don’t have to have the same qualifications
I guess. What was your wording? Ernesto: Yeah, the IRS can give you a certain
qualification, but you can also be a certain program or a certain association with a different
certification you will still fall with the TCPA exception. Derek: It’s just a lower barrier, you’re
not exempt. Ernesto: You’re not exempt. Derek: It’s just there’s a lower barrier
to your compliance, I guess. Ernesto: Yeah, we can say a lower barrier
to the consent requirements that you need to receive. Derek: So even if you are a nonprofit, definitely
consult an attorney because there’s a lot of nuances. But again I’m Derek Johnson with tatango.com
here at Innovista Law, the home of the TCPA Defense Force and we’re talking TCPA compliance for nonprofits.

Robin Kshlerin