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Telephone Consumer Protection Act (TCPA) Exemptions for Text Messaging


Derek: Hi, everyone. Derek Johnson with tatango.com. Today I’m at Innovista Law, the home of
the TCPA Defense Force, and I’m talking with Ernesto Mendieta, and I’m asking him
some questions that mobile marketers have questions about when it comes to text message
marketing and compliance with the TCPA. So one of the questions we get asked all the
time are, “What types of messages and/ or businesses are exempt from the Telephone Consumer
Protection Act?” Ernesto: Yes, I understand the question and
one thing that is important to remember before we actually get to the exemptions is to know
to what text messages the TCPA is applicable to. Derek: Okay. Ernesto: We have to be talking about robocall-started
messages. If you manually text someone, if you grab
your phone, text someone, the TCPA won’t be applicable. So we have to know that we’re not talking
about those messages. Derek: Okay, so if somebody gets out their
phone, text messages a customer, and says, “Hey, you know, I’d love to see you today,”
or, “Your package is ready,” but somebody actually took out their phone and texted that
consumer’s number, that wouldn’t fall under the TCPA? Ernesto: You don’t have to worry about the
TCPA for that. Derek: Okay, so, me text messaging you every
night and saying, “Hey, what are you doing?” I can’t be sued for that? Ernesto: No problem, yes. Derek: Okay, good. Okay, so now we know that it has to be…what
do you say, “Robocalled”? Ernesto: Robocall. Derek: Robocall. So it’s essentially not robots are doing
it, but it’s software. Ernesto: Correct. Derek: Okay, so, what businesses and messages,
now that we know that that is not applicable, are exempt from the TCPA? Ernesto: So, the FCC has recognized that the
TCPA by regulating automated or robocalls for text messaging can be too broad. There’s…they have recognized certain specific
messages that are desirable, that people want to receive, that they’re time-sensitive
and can be for emergency purposes. Derek: Okay. Ernesto: So, the FCC recognizing that there
are these messages that consumers are willing to receive and would be…and would benefit
from them has imposed certain exceptions to certain industries. We can talk about them, but the FCC recognizes
the broadness of the TCPA and avoiding to chill companies from sending texts that would
need to be there would prevent companies from doing it. Derek: So they’re looking…the TCPA and
the FCC eventually, or at the end, they’re looking out for the consumers’ best interest. So, they’re saying, “Well maybe if you’re
a brand sending messages about burrito discounts that one definitely falls under the TCPA,
but there are some things that, you know, maybe aren’t as important as a burrito discount.” Ernesto: Correct. Derek: Okay, yeah. Ernesto: Let me give you some examples. There are industry-specific exceptions. For example, package delivery. Derek: Okay. Ernesto: If you ordered something through
any salesman and it’s gonna get to your house, you’re expecting them to inform you
when are you if you have to sign when you have to be home. So you as a consumer, you would like to receive
that message that your package is on the way, it will be there in one hour, please be available
for a signature. Derek: Okay. Ernesto: So, the FCC has issued a package
delivery exception that for any text messages that actually relates to the delivery of the
package. They will be able to send it without worrying
about the TCPA. Derek: Okay, that’s really specific. Ernesto: Very specific. Derek: Yeah. Ernesto: And the problem is it doesn’t give
the certainty to package delivery companies that they’re under an industry-extent exception,
but the FCC can make clear that every exception is text-specific. Let’s say if a company’s sending a message
each message much comply with a number of requirements that the FCC imposes for them
to be exempt. Derek: Okay, so you’re saying that if I’m
a package company, but let’s say I’m not sending messages about your package being
available or when it’s coming, that doesn’t mean that you as a company are just completely
exempt from the TCPA? Ernesto: Correct. Derek: So it’s the text message and the
content of the text message and what the text message is about that is exempt from the TCPA. Ernesto: Exactly. Derek: I mean, this is confusing. Ernesto: Yes, and it happens in several industries. Package delivery was just example. We have for the health industry, you as a
patient you want your doctor to contact you. You want your pharmacy to let you know that
your next prescription is ready, but again there’s… Yes, the health industry is exempt, but each
specific message must comply with several requirements, say… Derek: So, if you were, let’s say, like
a, you know, pharmacy. If you send out a reminder about your prescription,
that’s not covered or you would be exempt from that, but if the pharmacy sent out a
marketing text message saying, 20% off, you know, things in our pharmacy, that would not
apply? Ernesto: Correct. Because you’re entering the realm of telemarketing. You have to be for… If the exception is for the health industry
it has to be for health treatment purposes. Derek: Okay. Ernesto: So, there’s always gotta be a close
relationship between the text message and the reason why there was an exception. Derek: That’s really interesting because
I think a lot of people in the industry think that if you are a health company or if you
are a package delivery company you’re just completely exempt. You can do anything, and that’s not the
case. Ernesto: That’s the general idea because
they have heard that there’s this exception for the health industry, but it’s very specific
and the analysis, if it’s exempt or not, will be on a case by case basis. Derek: Based on the content of the text message… Ernesto: The specific text message, yes. Derek: Okay, so you have healthcare companies,
package delivery companies, they’re just so specific. That’s crazy. And then, what other industries or kinds of
text messages? Ernesto: Yes, and I will continue giving you
examples, but let’s always keep in mind these are messages that are important, that
are time-sensitive, and we’re thinking of the consumer. Messages that they’re desiring to receive. Derek: Yep. Ernesto: Another industry, let’s call an
industry is the schools. Education. Parents have given the schools their wireless
number so they’re interested in receiving a message by the school of that is closely
related to the educational mission. Meaning something happened with their kid,
the change for the time that they can go and pick them up at the school changed, anything
that is closely related to the educational mission is gonna enter at the exemption. Derek: So the mission of the school. Okay. Ernesto: Yes. But please keep in mind I’m giving you a
broad explanation, but again each specific… Derek: It’s very broad. Yeah, yeah. Because raising money could be the mission
of the school. It could be sports like football games. So really, I think, if you are one of these
kinds of businesses, always consult an attorney. Ernesto: Yes, because the criticism to these
exceptions that the FCC grants because these industries actually gather together. They go to the FCC and say, “Please exempt
us because we’re sending these messages to parents regarding their kids,” but the
FCC goes back and grants these exceptions but it’s being very specific, setting requirements
to each, that each message has to include, like, you probably know about all of this,
but it’s… They have to have opt-out requirements. They have to identify exactly who is sending
the message. Derek: So, there are specific requirements
also for those kinds of messages. So really, just because you are a package
delivery company does not mean you have carte blanche or even you’re sending package text
messages. Always consult an attorney. Ernesto: Always consult an attorney. Derek: Because there’s just so many nuances. Ernesto: Yes. Derek: Okay. So besides those, what other ones we got? Ernesto: We have utility companies. Derek: Utility. Okay. Ernesto: Again, it’s a perfect example of,
“I’m a consumer of a utility. I want to know to know if the service is gonna
shut down.” If there’s gonna be an outage… Derek: Like the lights? Ernesto: Yeah, of water. I want to know my water company to let me
know, “From this time to this time there’s not gonna be water running through your house
because of maintenance.” Derek: Now, one question I get asked a lot
is, “How do those brands like the schools or the utility companies, how do they get
my phone number? Do I have to give the phone number to them
or can they just somehow find out my phone number?” Are there any restrictions on that? Ernesto: Yes. These exceptions and I’m saying, like, each
exception got its own requirements… Derek: Okay. A little different… Ernesto: A pretty common requirement is saying
that, yes, you can call them, and you won’t be subject to the TCPA liability, but you
have to call them to the number, to the wireless number that they gave you. Derek: Okay. So they would have to… So, if I go to, let’s say, a large online
retailer, and I don’t give them my mobile phone number. And let’s say they’re delivering my package. They couldn’t text message me, most likely. I would have to give my phone number first,
and then they could say, “Okay, because it’s a package alert, that’s okay to message
that person.” Ernesto: Correct. The FCC’s saying… Derek: Okay, so, this is complicated. Ernesto: Yes. These exceptions, each exception is a whole
level of regulation and effects that need to be understood, need to be applied correctly,
and… Still, you need to be conservative to actually
be…honor the exception, and avoid any risk under the TCPA. Derek: Okay. Any other businesses that would have, kind
of, an exception? Ernesto: Well, there’s another big area. That is political campaigns. Derek: Okay. That’s hot nowadays. Ernesto: It is. So what the FCC has not exempted them, but
they have granted them the idea that they’re considered as informational messages. So, even if… Derek: Okay, but not marketing. Ernesto: Not marketing and non-solicitation
even if they are calling on behalf of a campaign, and they’re requesting funding or they’re
inviting you to a certain event. The FCC has considered those as informational
so they’re not actually exempted. They’re just classifying them in a certain
level that brings a level or the requirement of consent to a lower level than telemarketing
that would require it to be prior written consent. For informational, they don’t get to that
high level of… Derek: And by telemarketing, you mean, essentially,
in our industry, text messaging? Ernesto: Yes. Derek: Like marketing sending out a burrito
discount? Ernesto: Correct. Derek: Okay. What about non-profits? Because I… It’s kind of interesting because schools
might be non-profits. Politicals are not really, but they’re kind
of non-profit. Like, are any non-profits exempt? Ernesto: Yes. That’s… You bring a great point, Derek. Non-profits have different levels of exceptions. So, let’s get… Let’s start. First, non-profits… If a call is made by a non-profit or on behalf
of a non-profit, it’s, in comparison with the political campaigns, it’s considered
as non-solicitation. So again, even if you’re calling to get
money, even if the non-profit is calling for… Derek: You’re soliciting. Ernesto: Yeah, you’re soliciting. Derek: Okay. Ernesto: The FCC has said, “Since it’s
by or on behalf of a non-profit, it’s non-solicitation.” What effect does this have? Is by being non-solicitation, the non-profit
does not have the obligation to be…to scrub their numbers against the Do Not Call Registry. Derek: Okay. Ernesto: So, they can actually call those
numbers. Derek: Oh, okay. Okay. Ernesto: Yeah, and the other effect is they
do not have to have a personal or the company inside Do Not Call list. Derek: Okay. Ernesto: In comparison to any other company,
the companies are required to have their own Do Not Call lists if each consumer opted out
of their consent, you would have a record or a database of who you should not contact. Derek: For each company, yep. Ernesto: Yeah. Non-profits do not have that requirement. Derek: Okay. Ernesto: And just…the other exemption for
non-profits is you do not… The FCC has granted that you don’t know
the written previous consent to actually contact them. You do need consent, the prior consent, but
not written, so… Derek: So you have to give your phone number
to the non-profit? So the non-profits cannot… And I don’t even know if there are any businesses
that without giving up your phone number they can text message you? Do you know, is there any industry or business
where it’s, like, “I didn’t give you my phone number, but under the TCPA, it’s
okay to send me a text message?” Ernesto: Good. And you’re taking me where I wanted to get
at the end. The general exemption, let’s remember, it’s
for emergency text messages. Derek: Okay. Ernesto: What is an emergency for the FCC? It’s, like, any text messages that are necessary
to prevent harm to health or safety. So, answering your question is, could you
call a number that you didn’t get consent, or you didn’t get it directly from the consumer? We would have to analyze the emergency part
of it. Derek: So, like, a city, you’re saying,
if it was, like, a natural disaster is happening, and they got all the phone numbers of the
people that live in that city, and I didn’t ever give my phone number to the city, they
could text message. Ernesto: Yes. Derek: I didn’t even know that. That’s interesting. Ernesto: Example. Living here in DC I have the occasional text
messages that there was an accident in the Metro, and it’s like, “Don’t go to this
station and this station.” I never gave my phone number to the Metro
company, but since I have a local number that identifies that I’m in DC, they will send
me an emergency alert. Derek: Interesting. I had no clue about that. I always thought you had to get permission. Now, it’s always good to get permission. It doesn’t hurt. Ernesto: Correct. Derek: You know, so if you sign up for subway
alerts, or whatever… Ernesto: You should… Derek: Yeah. Ernesto: My idea is you should because at
the end you would end up in a fight of actually proving that it was for emergency purposes,
proving, then, the emergency was there and it was necessary. Derek: Because you might not even take the
subways, so then it’s like, “Ugh, that was just a pain.” Ernesto: Yes. So it’s… I mean, the advice continues to be whenever
you send the text messages and go to an attorney and verify that you’re in compliance with
the TCPA. Derek: Okay, that sounds good. Man, so there are three different ones. There are businesses which are marketing,
soliciting. That one you have to get permission. You know, they have to opt-in. Then there’s kind of the middle ground which
is some of the healthcare, non-profits. What else were there? Ernesto: Schools. Derek: Package alerts. That if they give the phone number, but maybe
they don’t consent to certain things. That’s one. And then on the very other side, there’s
emergency, which is almost kind of a free-for-all. You can text message them if they…if it
is deemed an emergency. Ernesto: Yes. Derek: I’m gonna have, most likely, brands
being like, “It is an emergency that people know about this 50% off sale.” Ernesto: No, never. If it includes solicitation, it’s not gonna
happen. Derek: Okay. Okay. That’s good to know. That’ll help a lot of people. Well, thank you very much for your time, and
we’ll talk to everyone soon. Ernesto: Thank you, Derek. Derek: Thanks again. Thanks for watching our video today. If you like this video be sure to give us
a thumbs up on YouTube. If you wanna see more of this types of videos
be sure you subscribe to our YouTube channel. And if you have comments or questions, please
leave a comment or question in the comment section below.

Robin Kshlerin

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2 COMMENTS

  1. Tatango Posted on December 27, 2017 at 3:16 pm

    Interested in learning more about the Telephone Consumer Protection Act, and how it applies to text message marketing? Check out our entire playlist on this topic here: https://www.youtube.com/playlist?list=PL9VHsE18iQ6ZSbsSKueOfVQtk4ChT31dn

    Reply
  2. JC Rey Posted on February 19, 2020 at 7:26 am

    Hi,

    What if i got the contact number of a realtor from zillow and offered my services to him/her? With proper introduction of my business and the information about my business? Would that be an exemption? Please advise. Thank you and God bless.

    Reply
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