SMS campaigns are exciting to plan and implement, but before you even get to that point, you need to make sure you’re ready from a legal perspective. One of the first things you need to clarify is your message. What are you trying to send? Is it an administrative message that’s administrative, or is it a marketing message?
It’s not as easy to delineate between the two as one might think.
There are different laws, rules, and regulations that are in place depending on the type of message you’re sending, so to help clarify things, we’ve reached out to Eric Troutman of Squire Patton Boggs, our Regulatory Attorney, and the Tzar of TCPA and author of TCPAWorld.com.
We asked Eric: “How would you explain the legal difference between administrative and marketing calling?” Here’s what he said:
“Like so much else in TCPAWorld, this issue is not black and white. The best way to think about it is whether you’re offering a new good or service to a consumer or merely assisting a consumer with a good or service he or she has already obtained or is trying to obtain. Messages such as debt collection and account alerts are treated as informational. So too are validation messages and messages sent in order to complete transactions. But messages that seek to sell a new product the consumer has not asked for are almost always marketing in nature—even if there is some “informational” component. For instance, a message “informing” a customer that “mortgage rates have dropped” might, indeed, provide information but unless the consumer specifically requested such updates the message is likely to be viewed as marketing by a court—the purpose of the message was to convince a consumer to consider a new loan product.”
Are Your SMS Messages Administrative or Marketing in Nature?
SMS campaigns are often going to be considered marketing-based unless you’re doing a purely administrative effort. If your message is marketing-focused, you need to obtain express written consent before you send a message in most instances (more on that next week).
For administrative messages, you have different standards and best practices to consider. In order for a communication to count as administrative or informational, it needs to fit the following criteria:
- The communication is “closely related” to the purpose of providing information requested by the consumer
- The text or call is not dual purposed (these calls are treated as marketing and WILL require express written consent)
- E.g. You can’t try to hook someone with an administrative message if the ultimate goal is to sell them something.
- Merely entering a phone number into a field without clicking submit is not prior express written consent. See Caplan v. Budget Van Lines, Case No. 20-CV-130 JCM, 2020 U.S. Dist. Lexis 136865 (D. Nv. Jul. 31, 2020).
- Immediate one-time responses to consumer-initiated requests for information are not considered marketing.
Any other communications that involve trying to alter the consumer’s policy for the benefit of retention or upsell (or anything beyond providing basic account information) will count as marketing. Even if you are offering to save them money on a new insurance quote.
Let’s run through a few different scenarios.
Making It Easy
Eric recently made some really useful flowcharts on his website (TCPAWorld.com) that walks you through whether your SMS message will need express written consent before you reach out, or if you’re good to go. So if you’re wondering whether or not you can send a message without getting permission first, these flowcharts can help. (But they are no substitute for legal advice from your own counsel.)
In the next blog, we’ll walk you through how to get express written consent, and eventually even take a deep dive into the anatomy of a disclosure.
Already have the appropriate level of consent and need help on your next SMS campaign? Reach out to Drips. We’re happy to discuss your SMS approach and help you identify areas for improvement.
If you do not yet know the appropriate disclosures to gather that consent, stay tuned for next week!
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