Under the new rules taking effect on October 16, 2013, all autodialed or prerecorded calls (including text messages) to wireless telephone numbers that contain an “advertisement” or constitute “telemarketing” will be subject to a new “prior express written consent” requirement. The FCC’s rules define “telemarketing” as “the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person.” The rules define “advertisement” as “any material advertising the commercial availability or quality of any property, goods or services.” All calls (and text messages) subject to the prohibition that meet these definitions will be subject to the new “prior express written consent” requirement.
Purely informational calls (or text messages) will not be subject to this “prior express written consent” requirement. The FCC also has held that under certain circumstances debt collection calls are not “telemarketing” so they, too, should not be subject to this “prior express written consent” requirement. Dual purpose calls (or text messages)—i.e., transmission that contain both an informational and “telemarketing” component—typically require some analysis to determine whether they are informational or telemarketing in nature. But, as explained more fully below, even informational, debt collection, and dual purpose calls deemed to be informational in nature will remain subject to Section 227(b)(1)(A)’s “prior express consent” requirement when they are autodialed or prerecorded and transmitted to wireless telephone numbers or emergency lines of hospitals, health care facilities, and other first responders.
The FCC has defined what amounts to “prior express written consent.” Specifically, effective October 16, 2013, “prior express written consent” will mean an agreement, in writing, bearing the signature of the person called that clearly authorizes the seller to deliver or cause to be delivered to the person called advertisements or telemarketing messages using an automated telephone dialing system or an artificial or prerecorded voice, and the telephone number to which the signatory authorizes such advertisements or telemarketing messages to be delivered.
The definition goes on to state that:
[t]he written agreement shall include a clear and conspicuous disclosure informing the person signing that: (A) By executing the agreement, such person authorizes the seller to deliver or cause to be delivered to the signatory telemarketing calls using an automatic telephone dialing system or an artificial or prerecorded voice; and (B) The person is not required to sign the agreement (directly or indirectly), or agree to enter into such an agreement as a condition of purchasing any property, goods or services.
Finally, the definition notes that “the term ‘signature’ shall include an electronic or digital form of signature, to the extent that such form of signature is recognized as a valid signature under applicable federal law or state contract law.”
Because the statutory language of Section 227(b)(1)(A) imposes a “prior express consent” requirement on the transmission of all autodialed or prerecorded calls to mobile telephone numbers or emergency lines of hospitals, health care facilities and other first responders, the FCC determined that they remain subject to that standard, though that “prior express consent” need not be written if the call does not contain an “advertisement” or constitute “telemarketing.” In such cases, which would include informational calls, the FCC has held that “prior express consent” can be written, electronic or verbal, but, if challenged, the burden is on the calling party to demonstrate that consent was provided.
Since the beginning of the TL Connects rewards program we have been in compliance with the new laws that took affect on October 16, 2013. The TL Connects disclosure is presented on the iPad kiosk to the consumer every time they check-in. Our software logs each check-in and the latest disclosure. Per the laws stated above you will notice we follow the “Express Written Consent” rule and the “Not required to submit this agreement as a condition of purchasing any property, goods, or services.”
Disclosure Agreement on iPad:
BY CLICKING THE SUBMIT BUTTON YOU ARE GIVING EXPRESS WRITTEN CONSENT TO RECEIVE COMMERCIAL TEXT MESSAGES to your mobile number from [Company Name] & TL Connects. You’re not required to submit this agreement as a condition of purchasing any property, goods, or services. MSG/Data rates may apply. To opt-out anytime, reply STOP. Failure to periodically check-in may result in you being removed from [Company Name] rewards. For privacy info visit tlconnects.com/privacy.
We also have customers perform a double opt-in (which is consider express written consent) before we allow our merchants to send any marketing communication via our SMS platform. The message is as
Short Code: You must reply YES now to join [Company] & TL Alerts.
Short Code: You signed up for [Company] & TL Alerts. Up to 7 msgs/week. MSG&Data rtes may apply. Reply HELP 4 help, STOP to cancel.
textALERT Message from Short Code: All textALERT messages from TL Connects’ platform start with “company Alert: then message”
Example: Chick-fil-A Alert: FREE CFA sandwich with Purchase of Large Fry & Drink today only!! Redeem at iPad. Exp 10/10/2013