Can You Say ‘Thank You’ Under the TCPA?5 Aug, 2014 By: William I. Rothbard
Since the Federal Communications Commission (FCC) told telemarketers last October, in new rules issued under the Telephone Consumer Protection Act (TCPA), that henceforth they would need consumers’ “prior express written consent” to solicit them using an auto-dialer – even if they had a preexisting business relationship – clients have been wondering if this new requirement prohibits even an acknowledgement of a consumer’s inquiry with a callback or text. Is a simple “thank you,” and offer to be of more service, permissible under the new TCPA rules? While the Federal Trade Commission’s (FTC) Telemarketing Sales Rule (TSR) permits non-prerecorded telemarketing responses to consumers who have made an “inquiry” within the past 90 days, their legality under the FCC’s rule is less certain.
Neither the FCC nor the courts have yet addressed the permissibility of a “thank you” phone response to an inquiry, but they have addressed “confirmatory” texts sent in response to an opt-out request. A 2012 FCC ruling states that such texts are lawful under the TCPA if:
- The consumer has previously given express consent to receive texts
- The confirmatory text is sent promptly, only confirms the opt-out request, and doesn’t include any marketing information
- And it’s a one-time text and the only message the consumer will get after the opt-out request
If the FCC and courts were to view a “thank you” text or callback as analogous to a confirmatory text and analyze them in the same way, then such a response would be TCPA-compliant if it were a one-time communication, the sender had the consumer’s prior express consent to be contacted by phone, and the response didn’t contain any marketing information. Since the FCC confirmatory text ruling and cases interpreting it came before its TCPA rule change last October requiring prior express written consent for auto-dialed telemarketing, it isn’t clear whether the prior consent that’s required now for confirmatory texts (or texts like them) must be written or not. It is therefore possible that the FCC or the courts could still rule that prior written consent is required even for a mere thank you text or callback, and even if it contained no marketing information or offer of further assistance.
Some, but not all, pre-October 2013 TCPA court decisions say that prior express consent to receive calls or texts can arise when the consumer has previously given his phone number to the seller. The reasoning, which is similar to that behind the FTC’s “inquiry” exemption in the TSR, is that a consumer who leaves his number in the course of a call responding to an ad or a visit to a merchant’s website “invites” and/or can “reasonably expect” the seller to follow up with him. This rationale supports an argument that a consumer, by reaching out to the seller, has demonstrated an interest in the service being offered and thus has “invited” and can “reasonably expect” a “thank you” call or text (especially if it’s just one) that also facilitates the next step in receiving the service. However, to be certain such a response is TCPA-compliant before the FCC or the courts decide if the new written consent requirement applies to it, the seller would need to provide a way for the consumer to give his prior “written” consent (i.e., an E-signature or recorded authorization) to receive the message.
Besides the need to satisfy the express consent requirement, the FCC’s 2012 ruling makes very clear that a confirmatory text must not contain a solicitation. However, at least one federal court, in Holt v. Redbox Automated Retail LLC, in the Southern District of California, has ruled that a confirmatory text that links to a website containing marketing information, but contains no marketing information itself, does not violate the “no marketing” requirement and is lawful under the TCPA. The court rejected the argument that there should be “look through” liability for such texts that do not explicitly contain marketing information but link to websites that do. Thus, again assuming arguendo that a “thank you” text would be analyzed in the same way as a confirmatory text for TCPA purposes, a text that only linked to the seller’s site, or a callback that only provided the URL, would also appear to be the “look through” type which the court held does not violate the TCPA. This is just one decision, though, and other courts could decide the issue differently.
Until there’s more judicial or FCC guidance, direct response marketers anxious to convert “non-buyer” phone calls and Web visits into sales need to be cognizant that even a simple “thank you” text or callback, done without the consumer’s express written consent to receive a thank you, could create TCPA liability. They can attempt to mitigate risk, however, by carefully crafting a “thank you” response to be noncommercial on its face and, in line with the Redbox decision, to refer only to promotional content located elsewhere.
William I. Rothbard is a former FTC attorney and practices in Los Angeles, specializing in advertising and marketing law. He can be reached at (310) 453-8713, Rothbard@FTCAdLaw.com, and www.ftcadlaw.com.