In July of 2015, the Federal Communications Commission (FCC) issued a TCPA Omnibus Declaratory Ruling and Order to clarify some things in the TCPA. The TCPA was enacted in 1991 and many things have changed since then so the law needed an update.
Text Messages and Phone Calls are the same!
One thing the FCC clarified that I believe is extremely important to text message communication, text messages are “calls”. That the laws in the TCPA governing phone calls would also govern text messages. Basically, if you believe texting customers is illegal, so is calling them! I’m going to come back to this in a second.
The entire TCPA law centers around ATDS – Automatic Telephone Dialing System or Auto-Dialer. The law has a loose definition of what that is. It says anything that is “capable” of auto dialing even if it doesn’t have the capabilities currently to do so.
Well my friends, that is just about every single phone you will ever use today. Almost every phone in business today is internet based and run by a computer capable of automated dials. You would have to go hunt down an old payphone somewhere just to call your leads based on how the law defines an ATDS.
The TCPA was established to stop “unwanted” telemarketing calls/texts, not to stop customers and businesses from communicating with each other. I’m not saying you have no risk, because everything in business has risk and attorneys can sue you for anything, but I am saying your risk is exactly the same if you decide to call or text the customer, from any computer based phone system, and don’t have prior written consent. There is no difference between call and text since July of 2015. They are both the same. Take the time to read the Omnibus and know the laws.
Dealers have been calling and texting customers who have inquired about vehicles for many years. All those calls and text messages have been sent over ATDS capable devices over recent years. Yet, I can not find a single case where a dealer was sued under the TCPA because they used a smart phone or computer to call/text a lead who reached out for more information on a vehicle.
Lithia blasted a list and their Opt-Out wasn’t working and they kept sending text messages to customers who requested that they stop. It was also a “Text Club“, not direct communication with customers. You do want to make sure you have a vendor who has a functioning opt-out system so you don’t end up in this same situation. Also, under that same law you should also keep an opt-out list for people who ask you to stop calling them. They basically kept blasting people who said stop and that got them in trouble and spooked our entire industry.
I do not see much of a risk under the TCPA for dealers to text message customers who have provided cell phone numbers and requested information about vehicles. Obviously you don’t want to just buy a list and “spam” “unwanted” text messages because that is exactly what will get you sued under the TCPA! You have more risk in wet floors or hot coffee spilling on someone!
In short, keep your texting and phone calls to clients who have requested information and you should be just fine! Sales people text customers from their smart phones (ATDS) all day anyways.
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