Who is responsible for TCPA compliance? This is an important question for any organization that is considering text message marketing, as fines for violating the TCPA can cost brands up to $1,500 per individual text message.
However, it’s important to differentiate between who is responsible, and who is held accountable; or, as lawyers would say, “liable.” In the event that TCPA compliance has not been met and the issue goes to court, what happens?
Who is Responsible for TCPA Text Messaging Compliance?
In text message marketing, there are several key players. There is:
- The brand or retailer that wishes to use text message marketing.
- The software provider like Tatango, providing the text message marketing platform.
- Sometimes, digital agencies helping brands develop their SMS marketing campaigns.
In the event of TCPA noncompliance, who is responsible, and who gets sued?
The short answer: Everyone.
The long answer: The law holds the sender or the initiator of a message liable.
Your next question may be: what makes an entity the “sender” or “initiator”? Maybe you figure the brand would be the initiator, as that’s who wants to send a text campaign to begin with. But the truth is, even if a brand hires a third party to manage the messaging and campaign, as long as any of the parties are actively involved, they are all liable.
This is where contractual arrangements made between parties start to matter, such as:
- Did one party agree to defend or indemnify the other parties?
- Did one party agree to take responsibility or exclusive responsibility?
- What do the contractual arrangements between the three one parties say?
Those are all factors that will be determined in the law proceedings and shape the outcome of the case—but all parties would still be involved in the lawsuit to begin with.
What are TCPA Text Messaging Penalties?
So what are the penalties for TCPA noncompliance? The base statutory damages under the TCPA is $500 per call or message. If you are shown to have willfully violated the law, that amount triples to $1,500 per message, per person. The fines for TCPA noncompliance can easily stretch into the millions or billions if you aren’t careful.
How to Avoid TCPA Text Messaging Fines
So how do you avoid these disastrous fines and damages? First, all involved parties need to be extremely vigilant with TCPA compliance regulations. This means including double opt-in messages, clear disclosures, and other TCPA guidelines.
It’s also important for all of the involved parties to keep each other abreast of any problems, changes, or updates to a text message marketing campaign. A brand is not suddenly less liable because their marketing agency didn’t keep them updated. Every single party involved in text message marketing needs to do their due diligence.