One of the questions we often run into is: “What types of messages and/or businesses are exempt from the Telephone Consumer Protection Act?”
Before that question can be answered, we need to first discuss which text messages the TCPA does apply to. Once we understand that, we can discuss the exemptions.
What Types of Messages Does the TCPA Apply to?
The easiest place to start is automated messaging—or, as these messages are colloquially known, robocalls. The TCPA was developed specifically to counter the massive increase in telemarketing phone calls. At the time of the TCPA’s passing, telemarketers were harassing consumers with endless unprompted calls. With that in consideration, it seems fairly obvious that any form of automated messaging or robocalling is under TCPA purview.
Exceptions to the TCPA
So what’s an exception? The major exception is if you manually text someone. If you personally grab your phone and text someone, the TCPA doesn’t apply. You cannot be sued for that under the TCPA, and it is completely safe.
The FCC has recognized that the TCPA can be too broad in its application. The FCC has noted that certain messages are desirable and people want to receive them. In most cases, these messages are time-sensitive and are often for emergency purposes.
The FCC’s goal is to look out for a consumer’s best interest, so while some messages might not be emergency-related, the FCC does allow some exceptions. For example, package delivery. The FCC has issued a package delivery exception for any text message that directly relates to the delivery of the package. The TCPA does not apply to a text message that tells you when your order is about to arrive, and whether or not you have to sign for your package. This is one of a few very specific examples of a message that isn’t under the purview of the TCPA.
The key thing to note is that exception is text specific. It does not apply to the business as a whole; it only applies to that specific kind of text message. The same specific exemptions apply to messages like prescription updates and appointment reminders, but that doesn’t mean that a pharmacy gets a free pass on their “20% off sale” text message marketing. The promotional message would still be subject to TCPA guidelines.
Every type of message exception has a very specific and direct reason for its exempt status. No company or industry is entirely exempt.
Are Nonprofits Exempt from the TCPA?
Nonprofits have different levels of exceptions than standard companies. If a call is made by a nonprofit, or on behalf of a nonprofit, that call is considered as non-solicitation. By being non-solicitation, the nonprofit does not have the obligation to refer to the Do Not Call registry, nor is the nonprofit required to have a personal or internal Do Not Call List like normal companies do.
The other major exception that nonprofits benefit from is that their acquired consent does not need to be written; nonprofits can operate with other forms of consent, such as someone giving their phone number to the nonprofit.
Is Emergency Messaging Exempt from the TCPA?
There is one general TCPA exemption, and it is for emergency messaging. Any messages necessary to prevent harm to health or safety does not require consent from the consumer. For example, if there is an accident in the DC Metro, a governing company can send out a text to people in the area informing them of the situation and warning them away—all without needing their consent.
The definitions for emergency messaging can vary, so we at Tatango still heartily recommend working with an attorney to ensure that your messaging is TCPA compliant.
We hope you found our discussion TCPA exceptions helpful and enlightening. If you’re interested in learning more, download our free TCPA Survival Guide.
Or if you’re interested in text message marketing, please contact us here.