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Is Your Business Violating State-Level Do Not Call Regulations with Voice and Text Messages (SMS)?

Seldom a day goes by that I’m not getting a text message or phone call from a business that purchased my data and acquired my phone number. As a marketer, it’s quite infuriating. I didn’t provide my phone number to any organization with the knowledge that my number would be sold and used for prospecting.

Do Not Call Legislation

The Do Not Call legislation in the United States was first enacted in 1991, with the passage of the Telephone Consumer Protection Act (TCPA). The TCPA established rules governing telemarketing calls made to residential phone numbers, including requirements for telemarketers to maintain internal Do Not Call lists and restrictions on the use of automatic dialing systems and pre-recorded messages.

Since the passage of the TCPA, the Do Not Call regulations have been updated several times to include additional protections for consumers. In 2003, the Federal Trade Commission (FTC) established the National Do Not Call Registry, which allows consumers to register their phone numbers with the FTC and opt out of receiving telemarketing calls from most businesses. The registry initially applied only to landline phone numbers, but was expanded in 2005 to include mobile phone numbers.

In 2012, the FTC updated the rules to require telemarketers to obtain prior express written consent from consumers before making telemarketing calls to mobile phones or sending text messages to mobile phones. This update also clarified the definition of an automatic telephone dialing system (ATDS), which is subject to additional regulations and restrictions.

In 2015, the Federal Communications Commission (FCC) issued a Declaratory Ruling and Order that further clarified the TCPA’s requirements for telemarketing calls and text messages. Among other things, the ruling confirmed that telemarketing calls and text messages made to mobile phones using an ATDS or artificial or pre-recorded voice are subject to prior express written consent requirements.

What is Prior Written Consent?

Prior written consent means that a consumer has given explicit permission for a business or marketer to contact them via phone or text message.

This means that the consumer must have given their consent in writing, and the consent must include certain key elements, such as a clear and conspicuous disclosure of the nature of the messages or calls, the number to which the messages or calls may be placed, and the consumer’s signature.

The requirement for prior written consent helps to protect consumers from unwanted telemarketing calls and text messages. By obtaining written consent, businesses can ensure that they have a record of the consumer’s permission to contact them, and can avoid running afoul of TCPA regulations that carry significant penalties for violations. Here’s an example of a text message that can confirm prior written consent when a consumer opts into text messaging:

To receive SMS messages from [Business Name], reply YES. Msg&data rates may apply. You may revoke your consent at any time by texting STOP. By replying YES, you confirm you are 18+ and authorized to consent to receive SMS messages on this number.

It’s important for businesses to be aware of and comply with all applicable regulations related to prior written consent for telemarketing and text messaging. This may include maintaining detailed records of consumer consent, providing clear disclosures about the nature of calls and messages, and honoring requests from consumers to be added to internal Do Not Call or Do Not Text lists.

What About Calls Or Text Messaging Across State Lines?

If you have a business in one state and call a consumer that is listed on a state Do Not Call list in another state, you may be violating regulation. The reason for this is that many states have their own Do Not Call regulations and maintain separate Do Not Call lists, which apply to telemarketing calls made to consumers within that state.

For example, if your business is located in California and you call a consumer in New York who is listed on the New York Do Not Call Registry, you may be in violation of New York state law, even though your business is located in California.

Businesses should be aware of the Do Not Call regulations in all states where they conduct telemarketing, and should maintain their own internal Do Not Call list to avoid calling consumers who have requested not to receive telemarketing calls. Businesses should also be prepared to honor requests from consumers to be added to their internal Do Not Call list or the National Do Not Call Registry.

Directory of State Do Not Call Regulation Sites

It’s important to note that Do Not Call regulations do not work the same way as email. With email, you can send an initial email as long as you have a means of opting out. Calling or texting a number on a Do Not Call list is a violation without prior written consent.

You must ensure that any phone call that you’re cold calling without prior written consent is not on the federal do not call list and the do not call list in the state of the business or consumer that you are calling. Here’s a list of where you can find the Do Not Call lists by state:

One last bit of advice. If you’re purchasing a lead list from a third-party data provider, you should absolutely ensure that it’s been scrubbed against any federal and state do not call list at the time of purchase. Many data companies do not keep their lists updated. When you dial or text that number, you’re responsible for following do not call legislation… not your data provider!

Please note that the information provided is for general informational purposes only and does not constitute legal advice. The accuracy, completeness, adequacy, or currency of the information is not warranted or guaranteed. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Businesses should consult with qualified legal counsel before relying on any information contained herein.

Douglas Karr

Douglas Karr is CMO of OpenINSIGHTS and the founder of the Martech Zone. Douglas has helped dozens of successful MarTech startups, has assisted in the due diligence of over $5 bil in Martech acquisitions and investments, and continues to assist companies in implementing and automating their sales and marketing strategies. Douglas is an internationally recognized digital transformation and MarTech expert and speaker. Douglas is also a published author of a Dummie's guide and a business leadership book.

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