The hidden danger of texting, even if you don’t text

More and more customers want, if not demand, to do business using text messaging. The automotive industry has been particularly uneasy with implementing texting solutions after high-profile lawsuit settlements have left dealers and dealer groups understandably cautious.

What many dealers don’t know is that calling someone on their mobile phone can possess the same risk as texting. Phone systems and call center platforms could be classified as “autodialers” in the Telephone Consumer Protection Act (TCPA), which means all the rules that apply to telemarketers would apply to your business as well.

As you probably expect, I can’t provide legal advice and you should consult your legal team to evaluate your specific needs and take into account any applicable local laws. In an effort to have a solid understanding of the risks of texting at the U. S. Federal level I have read the TCPA, its revision, and its clarification; consulted statements made by NADA, Auto Advisory Service, several law firms, and advocate groups; I’ve even retained a lawyer that specializes in texting law. In all of that research, there has been a remarkably consistent set of best practices you can use to make texting as safe as possible under the current law.

Get permission

First, and most importantly, is that you must be given permission before calling or texting someone’s mobile phone. There are several terms in the TCPA that are intentionally vague or broad to help protect the law from being bypassed by future technologies. Unfortunately, the result is that normal business communication can be interpreted to have the same requirements as those for telemarketers. Having a business relationship is not enough to satisfy the “prior express consent” required. Even being given a mobile phone number as a point of contact is not enough in many cases. Instead, you should have a record of the customer acknowledging they OPT-IN to having you contact them on their mobile phone.

Be in control

In the TCPA, The “caller” has the responsibility to prove they obtained permission before making a call or sending a text. That is why you need to obtain contact information directly from the customer, keep records of their preferences, and use systems and processes that force employees to abide by the customers’ wishes. Any time you buy a contact list or an employee uses their personal phones to text you are exposed to significantly higher risk.

Update customer contact information

There is no safe harbor for businesses that intended to contact a customer but ended up contacting someone else. It doesn’t matter if there was a typo when entering the number into the Dealer Management System, or if the customer gave you the wrong number, or even if the customer got a new phone and someone else has the old number. You get one freebie. After that, any time you call or text a wrong number is a violation–even if the recipient doesn’t tell you it is a wrong number.

The only effective means to combat this problem and minimize potential risks is to verify customer contact information each time you do business with them.

Honor any OPT-OUT request immediately

When a customer tells you they don’t want any more texts or calls from you, you must honor that request right away. An OPT-OUT confirmation message can be sent within 5 minutes, but any calls or messages after that could cost $1,500 each.

You also cannot require the customer to OPT-OUT in a specific way, like replying to a text with the “STOP” keyword. Any request must be accepted regardless if they call, text, tell you in person, send you a postcard, chat with someone on your website, or any other means you use to communicate while conducting business. So make sure you have processes in place to handle those cases.

The bottom line

Customers expect to be able to text with you. It is up to you to put the right systems and processes in place to minimize the risks of texting and calling customers on their mobile phones. Have customers sign agreements that they OPT-IN to receiving texts and calls on their mobile phone. Make sure you keep customer contact records up-to-date. And your systems and processes must prevent future messages from being sent if they OPT-OUT.

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