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In the video shown above, Tatango CEO Derek Johnson and TCPA attorney John Nelson explain the issues currently pending at the FCC. These ongoing changes may have significant repercussions for the world of SMS marketing. If you prefer to read, see the post below.
The TCPA and the FCC
Since the early nineties, the Telephone Consumer Protection Act (TCPA) has governed text and telephone marketing issues. It requires companies to obtain consent before contact. Anyone who violates this law can be fined up to $1,500 per text message. The Federal Communication Commission (FCC), a regulatory agency, oversees and enforces the TCPA.
In 2018, the D.C. Circuit Court struck down various parts of the FCC’s traditional understanding of the TCPA, forcing a reexamination of several important issues. After Congress initially voted on the TCPA, the FCC was responsible for enacting the laws. Now that the courts are forcing changes, we’re seeing the agency request comments and ideas for future guidelines. Since the FCC defines the details of the TCPA, they’re asking the mobile marketing industry to voice its concerns and goals for the future.
What’s Changing at the FCC?
The FCC is currently considering two large dockets, but in reality, three main issues are under review.
First, the FCC will redefine what the TCPA means when it uses the term “ATDS,” which stands for “automatic telephone dialing system.” Currently, restrictions are placed on “equipment which has the capacity to store or produce telephone numbers to be called using a random or sequential number generator, and to dial such numbers.” But do these same laws apply to other types of dialing systems? What about a system where confirmed numbers of consenting customers are stored and dialed? Up until now, the FCC has used “ATTS” very broadly. These new changes will try to bring focus to this definition and provide clarity for brands using different mobile marketing strategies.
The second issue facing the FCC relates to how customers can revoke consent. The TCPA requires a brand to honor an opt-out method if it’s reasonable. Hopefully, this term will be better defined, considering “reasonable” is too flexible and can leave brands vulnerable to lawsuits. Would an opt-out request be recognized if a customer merely shouted it at the company’s headquarters? That may seem unreasonable to most people; thus, a more precise definition would be helpful.
Finally, the FCC is working toward a solution to address the issue of reassigned numbers. After a consumer changes their number, brands might have no idea they’re contacting a new person on the reassigned number. Until now, the FCC has used the term “call party” to refer to anyone who receives the marketing message. However, the term may better apply to anyone who has opted in, since a brand can’t know that a number has been reassigned. This has been an issue for years, and it may finally be on its way to a solution.
What Does the Future Look Like for the TCPA?
It may feel like the whole world of mobile marketing, centered around the TCPA, is set in stone. But as this current situation shows, legal definitions are often in flux. Regulatory agencies, like the FCC, are aiming to work with industries to find the best solutions for everyone. The best way forward for many brands is to give honest and useful feedback to the FCC while consulting with a TCPA attorney to help them navigate changes.
Count on Tatango to Help You Meet TCPA Requirements
Tatango has been an industry leader for more than 13 years, and our text message marketing platform includes tools and features that help you meet TCPA consent requirements. Need some guidance? Our team of experts is ready to help—contact us today.
