TCPA Compliance. Best Practices for Two-Way Texting

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1 TCPA Compliance Best Practices for Two-Way Texting When selecting a business-texting solution, companies must consider the potential for legal exposure under the Telephone Consumer Protection Act of 1991 (TCPA). Not all texting solutions are created equal, and two-way conversational texting platforms are inherently more natural than one-way texting short codes.

2 Introduction Audience This guide suggests best practices for any business that is actively using or considering using texting to communicate and build deeper relationships with its customers. Highlights If you re in the market for a business-texting platform, consider choosing one with tools you need to comply with texting and marketing regulations, one that connects directly to wireless carrier networks and one that supports two-way conversational texting. Not all texting solutions are created equal when it comes to providing tools and features that can enable a business to minimize its TCPA risk. Unlike one-way short code-based platforms, reputable two-way texting software is designed to support real human conversations. In a two-way conversation, consumers give consent and reaffirm their choice to communicate over the course of an active exchange of texts. Plus, individual texts are more likely to be considered manual, not automated, texts. As a result, businesses that utilize the Zipwhip software can provide a superior customer experience and may avoid liability for mass texting. History of the TCPA Best Practices for TCPA compliance: Avoid one-way mass texting Let your customers text first, or ask permission before you text Support the STOP keyword for opt-out Avoid texting reissued mobile phone numbers Keep complete records of opt-in and consent Use a real phone number, not a short code Text like a person, not a robot Congress enacted the TCPA in 1991 to protect consumers from robocalls, which had broadly expanded telemarketers ability to reach customers through random or sequential number generators. Since then, technology has evolved and rulemaking has extended the scope of the TCPA to apply to new technologies, including texting. At its root, the TCPA is designed to protect consumers from unwanted marketing messages. Today, much of the scope of the TCPA and its key definitions are under review. Guidance from experienced counsel is essential to ensure compliance with these changing obligations. 2 3

3 Rulemaking and Consent The TCPA limits how businesses can contact consumers on their mobile phones and allows consumers to opt out of receiving calls and texts that they don t want. When Congress enacted the TCPA, it authorized the Federal Communications Commission (FCC) to implement rules and regulations enforcing it (47 U.S.C. 227(b), (c)). The FCC established compliance obligations that trigger most TCPA litigation (see 47 C.F.R ). The types of actions that most commonly lead to litigation or enforcement actions are:: Texting or calling mobile phone numbers in bulk using a generic or pre-recorded message without permission; and Placing telemarketing calls or texts to consumers after they opt out. In order to make these calls or texts legally, a company must have permission from the consumer beforehand. This means: Express written consent for texts that are sent for a marketing or sales purpose (47 C.F.R (a)(2)); or Verbal or written consent for informational, non-telemarketing texts (47 C.F.R (a)(1)(iii)). Consumers provide consent when they initiate a text conversation. If a consumer chooses to send a text to a business phone number, they typically expect an in-kind response. As long as the text exchange goes ahead naturally based on a call-and-response pattern, it is no different from answering the phone and engaging in a conversation. When a business initiates a text-message conversation, it s important to collect consent, but it can happen organically and in a positive way based on the customer s expectations. The employee can simply introduce himself or herself and ask for permission before texting. Or, permission to respond via text can be included in a web or paper contact form when the phone number is collected. Examples of ways to get consent for business texting are provided on page 7. The Zipwhip platform helps you manage compliance with the consent requirement. Our tools allow you to load only those numbers that have approved texting as a means of communications. We make it easy and convenient for you to manually send individual texts too. To prevent texting after consent is revoked, our platform automatically implements a STOP command, preventing future texts, even if attempted. These methods are described further in this document. Revoking Consent If a consumer makes a do-not-contact request, such as opting out of a texting program, then consent is revoked and the company may not contact them again. Typically, in the texting ecosystem, opt out is supported with the keyword STOP. When a consumer sends a text with the word STOP, the business should immediately take them out of all recurring texting programs and cease text message contact in the future. There are two ways to implement the STOP command: Manual: Some texting service providers provide no support for the STOP keyword and leave businesses to respond to consumer requests manually Automatic: The most secure texting platforms implement a STOP keyword at the network layer, so every consumer request is processed automatically Businesses should seek a texting platform that supports the STOP keyword at the network layer because that means opt-out requests are handled automatically. Reissued Phone Numbers A challenge with mobile phone numbers is that they aren t permanently assigned to only one person. When a consumer cancels their phone subscription, the phone number is disconnected and put back into a pool where it can be reissued to a new consumer. This common practice has led to a new type of TCPA litigation, where a consumer sues if a company attempts to contact the previous phone subscriber from whom they had valid consent. Most courts have upheld that consent does not transfer to the new subscriber, which means companies can be held liable for texting a number that was reassigned without its knowledge. Only the mobile network operators and select vendors can see number cancellations and transfers. Require your business texting platform to proactively opt reissued mobile numbers out from receiving texts. 4 5

4 Recordkeeping Templates Common Sense Best Practices Keeping clean records is a good safeguard to minimize the risk of TCPA litigation. A compliance-friendly texting platform will archive conversations in a write-once, read-many format so that all customer interactions are recorded and archived, including the opt-in method and any opt-out requests. Having two-way text conversations with your customer and archiving those conversations correctly can be useful in demonstrating regulatory compliance. Your texting platform should archive SMS, MMS picture messages and attachments. One-way Short Codes vs. Two-way, Real Phone Numbers There are different types of text messaging platforms and some are designed exclusively for mass marketing. Legacy business text messaging platforms based on 5- or 6-digit short codes blast high volumes of a single canned message out to consumers. This one-way text message marketing exemplifies the typical kind of TCPA claim. On the other hand, texting with an existing business phone number stimulates two-way conversational texting. It feels more natural and is less likely to be seen as unwanted by the consumer. Two-way texting gives customers a way to communicate that is convenient, relevant, and quick. It leverages the investment that businesses have already made in their existing phone numbers to drive customer engagement, satisfaction, and loyalty. Short code texting systems set a bad precedent. Short code opt-in templates try to fit many disclosures into the first text, which results in a strange, unnatural customer experience. For example, a short code might send:: Welcome to info texts 3 msg/mo reply STOP to cncl msg&data rates may apply. Most consumers who read that text actually mistrust the message and worry that it is from a hacker or a robot. It is counterintuitive, but this text full of disclosures may actually prompt a spam or TCPA complaint. There are ways to record consent within the course of a natural human conversation. Here are some best practices we ve seen customers implement. Every company has different policies, business needs and compliance risks. Seek specific legal advice before adopting any of the suggested compliance practices. If the customer texts you first Hi, I m looking for car insurance. Can you help? This is Zach with ABC Insurance, I definitely can. Are you okay discussing insurance options over text or do you prefer a call back? If the customer fills out an online form This is Zach from ABC Insurance. It looks like you re in the market for car insurance. Text me back at this number to approve, and I ll help you find the right policy. If you want to extend a consented conversation Hi Jill, this is Zach from ABC Insurance. It was great working with you today. If you d like to receive updates in the future, reply YES to this text. Otherwise, you re all set! Enjoy the new car! Do Don t Keep texts short and relevant Text known consumers who ve expressed interest in your business, or with whom you ve spoken before Share information and send reminders, confirmations and follow ups Let customers know they can text STOP to opt out Respect the opt out when received Add promotional language that isn t related to the conversation at hand Send texts to prospects you have no existing relationship with Attempt to promote or sell a service over text out of nowhere, without permission Spam consumers with unwanted messages 6 7

5 A Seattle-based SaaS company, Zipwhip is modernizing business communicaton by adding texting to existing landline, VoIP and toll-free phone numbers. We pair direct network connectivity with easy out-of-the-box software, so businesses of any size can give customers the choice to text or call and handle two-way text conversations at scale. The complete package Zipwhip is the only company with A2P network binds on real phone numbers, which means Zipwhip software is the only way to send secure, high-volume messages from 10-digit numbers. Sophisticated Direct network connectivity lets Zipwhip deliver integrated compliance solutions in the background so businesses can engage in real, human textmessage conversations with their customers. Flexible and secure Zipwhip is the leading businesstexting solution for enterprises across 35 different industries. Our platform is configurable to support compliance strategies for FCC, CASL, FTC, FINRA, SEC and other industry regulators. 8