SMS Compliance: Ask the Expert!

Understanding the rules for SMS compliance is as crucial as it is complex. That's why we were delighted to have a sit-down with a legal SMS compliance expert to ask them more about a tentpole statute called The Telephone Consumer Protection Act (TCPA) and its implications on SMS text message marketing for businesses.

On September 19th, 2023, Vibes hosted a webinar - SMS Compliance: Ask the Expert - where we were joined by Jennifer Bagg, Partner at HWG LLP and SMS compliance expert extraordinare, to ask her more about the TCPA, how it's evolving, and how businesses can address it with confidence as they grow their SMS marketing efforts.

You can download the full webinar here for more trends and for all of the questions we unpacked, and here are some highlights of what was discussed:

The importance of staying updated on TCPA regulations.

Since being established in 1991, the TCPA has evolved its regulations for text message marketing and what it means to be an autodialer.

"We used to live in a world where the FCC thought that almost anything related to technology qualified as an autodialer", Jennifer explains, "and the problem with being an autodialer is that you are subject to an enhanced set of regulations in order to send marketing text messages." More specifically, this means businesses who wanted to send their customers SMS marketing messages would need to obtain “prior express written consent” (PEWC) prior to sending those messages.

Although a Supreme Court decision against Facebook in April 2021 regarding autodialer definitions was deemed too broad, which loosened some of its requirements of businesses sending text messages, there still remains obligations to comply with TCPA guidelines.

Potential impact of state-specific privacy legislation on TCPA compliance.

In more recent years, states such as Colorado, Florida, Oklahoma, Maryland, and Virginia enacted local laws - sometimes referred to as mini-TCPAs - that apply to mobile messaging specifically sent to their residents. Other states are expected to pass their own local legislation in the near future that could have unique, specific consent requirements than what we see at the federal level.

Since certain state laws could be interpreted as more restrictive than the TCPA federal regulations, Jennifer addresses how a business can never be too careful when it comes to abiding by the various rules out there. "By and large, the easiest thing to do is find out which state is the most restrictive and comply with that everywhere", advises Jennifer. In other words, abide by the rules and regulations of the most restrictive state and apply that to all of your SMS subscribers across the nation.

But just like the ongoing evolution of TCPA at the federal level, businesses would be wise to continue monitoring what's going on with the latest developments for the different states.

TCPA litigation trends.

Jennifer touches on a couple of key trends from the litigation side, the first one being the ongoing response from plaintiff's counsel once the Facebook ruling happened, which essentially destroyed a lot of plaintiffs attorneys' pending class action lawsuit cases against businesses who were sending SMS marketing messages. As a result, they're getting creative with other ways they're bringing cases under other parts of the TCPA, like "do not call" provisions. "These rules used to be pretty clear in terms of who gave you consent to contact them or not" Jennifer says, "but plaintiff's counsel have tried to blur those lines."

Another trend is how the settlement landscape has changed. "Plaintiff's counsel have gotten savvier over the years, trying to create precedent that opens the door to more cases," Jennifer pointed out. While some of these cases are lower dollar amounts that Jennifer has seen go away, some of these attorneys remain bullish on these novel ideas, refusing to settle unless it's for a significantly large payout.

Download the full webinar here for the full 30-minute Q&A to hear more trends from the regulatory side, and best practices for what companies can do to put themselves in the best position for sending their marketing SMS messages.