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Business Owners Need to Know About the Change in Law for Phone and Text Message Marketing

Lucere Legal helps small business owners with regulation compliance for marketing campaigns

The Telephone Consumer Protection Act, which was originally passed in 1991, recently got a face lift and the change in law may impact you. The law applies to both calls and sms text messages that offer or market products or services to consumers. Calls and text messages that are only informational or are not for commercial purposes are exempt from the regulations.

The change in the law went into effect October 16, 2013 and the new provisions may surprise you. The new rule requires prior written consent for text messages and auto-dialed or prerecorded marketing calls. The real zinger that you may not expect is that there is no longer an exception for having an “established business relationship.” You now need written consent from everyone, no matter what.

The written consent must be unambiguous, meaning that the opt-in needs to clearly and conspicuously state that the person is agreeing to receive future text messages or calls that contain autodialed and/or prerecorded marketing messages. The opt-in also needs to state that consent is not implied by a purchase, and then the customer must give you the preferred phone number for those communications. You must also include opt-out opportunities with each message. These are more technical points to the new rules that we aren’t exploring here, too.

If a customer complains about your text message or call to them, you have the burden of proving that you have a clear and conspicuous consent from that customer. The customer has four years from the time of the text or call to bring an action, so it is a good idea to archive those consents for at least four years.

The cost of not complying with the law can be very steep, with damages ranging from $500 to $1,500 per message. As many marketing campaigns involve many thousands of names, the damages can add up fast.

If you would like to make sure your next marketing campaign complies with the new law, give us a call at (612) 206-3701 or fill out our contact form today to set up a small business consultation session.

Image courtesy of adamr / FreeDigitalPhotos.net

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