Can You Text Customers?

TEXTING IN BUSINESS

BY: LAWRENCE S. SEARCY, JR.

In 2007, more than 363 billion text messages were sent in the United States. That number has since risen to more than 1 trillion messages a year in 2008. According to a recent Nielsen poll, teenagers between the ages of 13 and 17 text an average of 1,742 times per month. Most of this messaging is person-to-person. However, with texting popularity rising among all age groups, businesses are starting to use it as a tool to communicate with customers. Many businesses use texting to advertise, promote a product or event, or notify customers of sales. What used to go into the mail is now being sent by e-mail or text.

At first glance, most businesses would not see a problem with texting customers about a special offer. However, there are legalities that must first be considered. Unfortunately, the law has not caught up with technology and texting is caught in the middle of some outdated laws that apply to other mediums such as telephones and emails. Federal agencies, courts and regulatory bodies are now struggling with how to categorize a text message and apply the old rules to a new technology.

Is a text message a phone call?

A federal law called the Federal Telephone Consumer Protection Act (TCPA) generally governs telephone calls. The problem is that the act itself does not define the term telephone call. Instead the regulatory body enforcing the law, the Federal Communications Commission (FCC), considers a text a call even though the law giving the FCC its power does not define it one way or the other. If a text is treated as a call, then businesses need to be aware of at least two implications.

1. A business cannot text a message to any number that is on a business “Do Not Call" list” or on the national “Do Not Call" list.

2. A business cannot send a text message to a cellular phone regardless of whether the number is on the "Do Not Call" list, if the text is sent from an automatic dialer or “robo-dialer.” Be careful because any computer may be considered an automatic dialer.

Is a text message an e-mail?

If the text is considered an e-mail, then any communications to consumers in e-mail format are subject to the “CAN SPAM” Act. The Can Spam Act is another federal law regulating e-mail messages and their content. For example, all commercial solicitation e-mails must contain the sender’s name, physical address, and a notice that the program is cost- free. Additionally, the consumer must have an opportunity to “opt-out” of additional solicitations. Moreover, the FCC has regulations that prohibit sending commercial e-mail messages to mobile devices without express prior permission.

Is a text message both an e-mail and a phone call?


According to the FCC, a text message qualifies as both an e-mail and a call. If this is the case, then businesses wishing to use the technology should comply with both sets of regulations. To do so, be sure to do the following things before sending the messages:

1. Get express prior permission from the recipient before sending the message.

2. Review your company's personal "Do Not Call" list to be sure the recipient is not on the list.

3. Review the national "Do Not Call" list to be sure the recipient is not on the list.

4. Determine if the delivery of the message complies with all of the requirements of the CAN SPAM Act.

In the end, each business needs to determine if the risks of texting are worth the compliance hassles. It may be better to hire an experienced outside consulting firm to implement the program. Also, always be sure to consult with an experienced attorney about compliance issues before starting a new program.