466 Views
This video is brought to you by Innovista Law, home to the TCPA Defense Force. Innovista's lawyers have helped companies navigate potential TCPA landmines through effective risk-mitigation and compliance strategies.
To learn more about the TCPA and their services, visit www.tcpadefenseforce.com/tatango-partnership
In this video, we discuss what is “reasonable” with regard to opting out of SMS marketing. Generally, when thinking about opting out of SMS marketing, the keywords STOP and UNSUBSCRIBE come to mind. But how clear do you have to be in your communications to subscribers?
About Rando v. Edible Arrangements
Edible Arrangements is a company that delivers, you guessed it, edible arrangements meant to look like flowers. These arrangements arrive as a fruit bouquet and usually include some pieces covered in chocolate! Customers usually send a loved one an Edible Arrangement the same way they might send flowers.
Plaintiff Nicole Rando sued Edible Arrangements for continuing to send SMS messages after she “asked” to opt out. Rando initially opted in to receive these messages, most likely due to a discount or special offer from Edible Arrangements as an incentive.
Later, she decided she didn’t want the messages anymore. Usually, messages like STOP or UNSUBSCRIBE are a quick way to remove yourself from a texting service. However, Rando texted back phrases that the software provider couldn’t read, like, “Take my contact info off, please,” and “I want to confirm that I’ve been removed.”
Edible Arrangements won, but let’s dig deeper into Rando’s argument and what companies can do to avoid lawsuits like this one in the future.
What Was Rando’s Argument?
In 2015, the Federal Communications Commission (FCC) released a declaratory ruling that consumers can opt out by any reasonable means. Rando felt as though the messages she sent to the platform were reasonable. Because these platforms are computers, it’s highly likely that no human ever saw these messages. These platforms generally handle subscribers’ opt-out requests in specific ways, such as requiring that a subscriber text one word that the computer can understand.
The court ruled in favor of Edible Arrangements after deciding that communicating with an SMS provider like a human is not reasonable.
While we can’t make assumptions about Nicole Rando, it’s very common to see a “professional plaintiff” in TCPA cases—that is, someone who understands the “damages” as outlined in the TCPA and is trying to make a case. Some people will say everything but the word STOP or UNSUBSCRIBE to increase the number of messages from the company, which would then increase the damages. Other times, an individual truly is frustrated by the SMS marketing and can’t figure out how to remove themselves from the distribution list.
How Can a Company Avoid This Type of TCPA Lawsuit?
In addition to heeding the advice of SMS marketing experts like Tatango, our top recommendation for avoiding TCPA lawsuits related to opt-outs is to work with an attorney before initiating an SMS campaign. Here are some helpful tips to get started.
Keep Records of Everything
The judges in these cases are rarely TCPA experts, so you’ll need to have all your receipts of consent ready to make it easy on the judges. It’s up to you to prove your recipients gave consent, so you should have records of the original consent and every message you exchanged with consumers.
Make Opting Out Clear
Edible Arrangements didn’t send automated messages telling their subscribers to text HELP to get help or STOP to stop receiving messages. Still, it did comply with the CTIA recommendation to have the STOP command. While Edible Arrangements was still following guidelines, it could have been even more proactive and preventative by including opt-out instructions with most texts.
Some may argue against doing this because your opt-out rates may increase, but the metrics that matter will also increase. Your click rates and engagement will generally improve because you’re clearing out subscribers who don’t intend to do business with you. SMS marketing isn’t cheap, so it’s best to invest your time and money on sending messages to people who want to receive them. Furthermore, our data shows that a very small percentage of people actually opt-out once they sign up for your SMS list.
Use a Double Opt-in
In SMS marketing, a double opt-in requires that a consumer reply YES via text message to confirm they want to receive recurring text messages. This opt-in confirmation request can be in response to a consumer texting an SMS keyword to a short code or entering their mobile phone number into a web form. Remember, it’s your responsibility to prove that your subscribers are aware they were consenting to be a part of your recurring text messaging program. Even though double opt-in isn’t a requirement of the TCPA, it helps provide proof that a consumer consented.
Let Tatango Help You with TCPA Compliance
If you’re ready to get started, our experts are here to guide you. Contact our sales and support team today, and let us help you create your first TCPA-compliant text message marketing campaign.
