Ready, Set, Text! Best Practices for Texting Compliantly Wednesday, May 4, 2016 Riverwalk South John F. Possumato, Esq Automotive Mobile Solutions LLC john@possumato.com Call or Text 856 577 2763 Text AMS to 69696 for Digital Business Card
Agenda Hot Topic in Legal Education (Be Afraid, Be Very Afraid) The Mobile Consumer Text Communication The FCC TCPA The Difference Between Text Message Marketing & 2- way SMS Communication Text Message Marketing Rules 2-Way SMS Communication TextChat Practicing Safe Text Extra Bonus When is a Text, not at Text Questions
Hot Topic in Legal Education -
Any Questions as to Why?
+ Just recently Buffalo Bills $3.5M (unlawful texting)!
And Lest We Forget $2.5 million The settlement amount. $600,000 Fees collected by the attorneys representing the consumers. $150,000 Fee for administration of the claims. $10,000 The amount the lead plaintiff received. $1.74 million The amount to be paid out to class members. $175 The amount to be paid out to individual class members that received the first text message. $150 The amount to be paid out to individual class members that received the second unsolicited text message. $500 The amount paid out to individual class members that received the second unsolicited text message, after they opted out after the first one. $675 The amount paid out to individual class members that received both the first unsolicited text message and the second unsolicited text message, after they had previously opted out.
Most Recent TCPA Enforcement Rules
Identifying Unwanted calls and texts are the number one consumer complaint to the FCC
and strengthening enforcement -
The Dissenting Vote Says it All
The Mobile Consumer Text Communication Sending and Receiving Text Messages is the prevalent form of communication for Americans younger than 50 The New Era of Communication Gallup 2014 Two Thirds of Americans own a Smartphone and 97% of them Use Text Messaging at Least Once During a One-Week Survey Period April 2015 Pew Research Report 90% of All Text Messages are Read Within 3 Minutes 2010 (10% of emails are opened) SinglePoint Whitepaper Usage of a Smart Phone - #1 Sending Texts #2 Receiving Texts #3 Reading Email #4 Surfing the Internet #5 Alarm Clock #6 Making Calls Hallo Survey, Featured in UPI October 2014
2-Way SMS Communication TextChat Becoming Far More Prevalent Inside Showrooms and Service Departments (whether management knows it or not)
Text, or You Won t Be Heard
The FCC TCPA Definitions: TCPA Telephone Consumer Protection Act FCC Federal Communications Commission ATDS Automatic Telephone Dialing System or Auto-Dialer Text Messages Text messages are calls for the purposes of the TCPA. Prior to September 23rd, 2013 you could text based on having an established business relationship with a customer. This is no longer the case. The TCPA rule no longer allows the established business relationship clause to circumvent written authorization. This means automobile dealerships must attain prior express written consent before telemarketing, advertising or texting from an auto-dialer, prerecorded device or software solution. Written consent must be clear and conspicuous and not be a condition of purchase. To comply, written consent can be attained with a written signature, through email, a website form, or a text message. You may not, however, send an ATDS text message requesting a person to opt-in. Prior to July 10th, 2015 FCC Declaratory Ruling and Order the definition of an ATDS or auto-dialer was unclear. The current ruling as of, July 10th 2015, and the most recent language states: Auto-dialer for the purposes of the TCPA, is any technology with the capacity to dial random or sequential numbers, regardless whether the technology has the current capacity to make the call in issue & equipment to send Internet-to-phone text messages. Opt In Text Regulation. A May I Text You text cannot be sent without prior written consent. A business cannot text a customer to ask if it is okay to text them without prior express consent. We see CRM vendors and texting vendors break this rule daily. Violation is Like Jaywalking You Might Not Get Caught But If You Do
The Difference Between Text Message Marketing & 2-Way SMS Communication Text Message Marketing: non-interactive (not two-way one on one SMS text communication) Usually used as Text advertising specials/substitute for email blasts Opt-In subscription based specials and messages Status notifications/updates Single message responses Limited use for communication, service sales, customer approvals etc. Text Message Marketing falls under specific TCPA Regulations
Text Message Marketing Rules Can be solicited with keyword/shortcode Text DEAL to 69696 Must obtain explicit written permission from the recipient to subscribe to very explicitly defined messages For example, if you inform the potential subscriber recipient you will send up to 3 service specials a month, for example, you can not send four and you can not offer a sales special such would be a violation subject to sanction Always must include specific stop disclaimer language and it must strictly enforced (Lithia Example)
Text Message Marketing Violation
Note: Any Variation of One-Way Text Message Marketing Falls Under Text Message Marketing Rules
2-Way SMS Communication TextChat The New Wave of Dealership Communication For Sales Prospects & Customers Web based links CRM based For Fixed Ops Expanding Geometrically No Switchboard delay Status update, total cost, additional recommended repairs, even a full video of vehicle walk around can be received direct, without interrupting phone calls or time consuming visits Eliminates confusion, transparent without interruption
Automotive News 4.4.16
Two-Way, One on One TextChat TCPA Rules Receive and Retain Appropriate Express Written Consent Make it Part of the Process Note: Cannot send a can I text you text! and even if an old customer text s you first, without Express Written Consent, you are in violation Add Permission and Message and Data Rates May Apply Disclaimer to all Customer-Facing Calls to Action Send an Initial Confirmation Text Message with Opt-Out Instructions the Double Opt-In Message with Opt-Out Information Make Sure You Have Fool Proof Automated Opt-Out Procedures in Place 5 Magic Words End Unsubscribe Cancel Stop Quit
2-Way TextChat TEXTCHAT is interactive, just like texting on your phone, best to make it platform based Full text conversation between your representative and customer All text communication can be recorded and archived Can attach pictures and video Once opt-in ( Express Written Consent )received it is good until cancelled by customer Cancelled by 5 opt out words End Unsubscribe Cancel Stop Quit Conversation can be reopened at any time 2- Way SMS Text/ TextChat falls under different TCPA Regulations
Practicing Safe Text Recommendations Step 1: A TCPA Compliant SMS Texting Platform Permanent Archive Record of Written Consent from the Customer Control of Opt-Out Message, Archive Record of Proper Message and Data Rates May Apply Disclaimer Archive Transcript or Record of the Text Conversation by the Dealership ABSENCE OF THESE THINGS IS AN INVITATION TO VIOLATION
Practicing Safe Text Step 2: Institute An Official Texting Policy Prohibit All Personnel from Texting Outside of the Compliant Texting Platform. Prohibit All Communication and Use of Cell Phone Number other than for text communication, for those that Consent to TextChat in Initial Prospect Inquiries Require Message and Data Rates May Apply Disclaimer and Double Opt-In, Opt- Out Instructions to be Sent with First Text Archive all Opt-In and Double Opt Consent for all Customers and Prospects Permanently Monitor and Control All Texts from Your Team to Ensure that All Policies are Being Followed Investigate a Software Solution that Enables Fully Compliant Texting
Practicing Safe Text What to Look For in a Compliant Texting Platform Written Consent Permission on all In-Bound and Out-Bound Initial Texting Contacts, Archived for Easy Retrieval Message and Data Rates May Apply Disclaimer on all customer facing Text Calls to Action, Including Initial Opt-In Message Sent to Customer s Cell Phone, any Online Link Click to Text Form, etc. Automatically Sends the Opt-Out Language on the First Text Message Sent a Customer Automatically Opts-Out to all Opt-Out Keywords (STOP, CANCEL, END, QUIT), and Replies to the HELP Keyword (no room for human error)
Practicing Safe Text Additional Desirable Features - A Vender that Regards Text Communication Private Property of Dealership, not Vendor Beware of Free or included Text Systems Offered from Lead Generation Vendors Dedicated Platform For Sales and Fixed Ops/Service Department Ability to Operate System by Desktop or Mobile Device (never revealing Mobile Dealership User s Direct Cell Phone #) Ability to Text Pictures and Video as Well as Text TCPA Compliant Ability to Opt-In a Customer Multiple Ways By Direct Text Message From Desktop or Mobile Device Through Cloud Desktop or Mobile Call Out Link (for all digital communication) By Distinct Keyword for Business Cards, Non-Digital Advertising Text JIM to 69669 By Service Landline Phone Number Where Texts Go To Service Text Platform
Practicing Safe Text Still More Additional Features - Text Notifications by Text (to Specific Personnel), E-Mail and PC exe Pop-Up (and ability to respond by mobile or desktop) Text Based Reputation Management Capabilities White Label and Administration Parent Platform for Overseeing and Managing Multiple Stores Personal and Attentive Platform Support Do Not Assume CRM Provided Texting Capabilities are Compliant Sometimes they are Not, and Remember Compliance with TCPA Regulations, and Liability, Ultimately Rests with Dealership Not with the Vendor
Extra Bonus When is a Text not a Text? (According to the TCPA Regs) When it s a Mobile App or Mobile (Apple/Google) Wallet Push Notification These are above the lock screen push/text notifications, are not subject to TCPA regs, a they are tied into an private App or Google Wallet
Push Notifications, Geo-Fenced Texts, or Texts by Beacons without a TCPA Worry? Mobile Wallet or Customized App Based Solutions
You Can Trigger these by Geo-Fence or Beacon through a Mobile Wallet Coupon
Or Trigger these by Geo-Fence or Beacon through Your Own App
and from an App Get Feedback on Precisely When A Prospect Enters A Geo-Fence but still this type of messaging currently doesn t fall under TCPA Regulations. Real Live Time Intelligence Information (reported back by text or email) Whenever a User Enters any Geo-Fence and Receives Targeted Messages (immediate feedback to BDC, for instance, that someone just entered a targeted competitor s lot or service location)
Ready, Set, Text! Best Practices for Texting Compliantly Mobile Wallet Business Card QUESTIONS? Scan Here John F. Possumato, Esq john@possumato.com Call or Text 856 577 2763 Text AMS to 69696 for Digital Business Card