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Introduction: The Rewards and Risks of Mobile Messaging
Mobile messaging is a necessity for a modern business and offers numerous benefits. Customers prefer text messages and read them more than other forms of messages.
However, mobile messaging can present significant risks and liabilities for businesses. That is why compliance with the federal and state legal requirements for mobile messaging, including the Telephone Consumer Protection Act ("TCPA") and state marketing laws, is essential before undertaking any such messaging campaign.
TCPA damages are statutory—ranging from $500 to $1,500 per unauthorized message—a number that can grow quite large when violations are aggregated into a potential class action lawsuit.
Managing the Risk: Obtain Prior Express Consent for Messaging
Always obtain "prior express consent" before undertaking a messaging campaign. The type of "prior express consent" depends upon a number of different factors:
- The type of telephone line being contacted (Wireless vs. Wireline)
- The method of delivering a message (Automated Systems vs. Manual)
- The purpose of the communication (Marketing vs. Informational)
- The sender's identity and frequency of contact
- The called party's location and specific state-level exceptions
Advertising or marketing communications require "prior express written consent," while other types of communications require "prior express consent."
Managing the Risk: Allow Opt-Outs Using "Any Reasonable Means" and Honor Opt-Outs Within a Reasonable Time
In February 2024, the FCC amended its TCPA rules to allow consumers to revoke consent using "any reasonable means."
Your messaging infrastructure or the messaging platform you use should be sophisticated enough to recognize and honor various signals that indicate a consumer has revoked their consent to be contacted. The FCC has set out a number of different ways to honor opt-outs:
- Website or Designated Numbers: Portals or lines specifically established to process revocation requests.
- Reply Text Keywords: Systems must recognize a wide array of keywords, including STOP, QUIT, END, REVOKE, OPT OUT, CANCEL, or UNSUBSCRIBE.
Revocation requests must also be honored within a "reasonable time" not to exceed 10 business days.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
