A Compliant Text Message Service Begins with the Consent – And Ends with Big Results

This article previously appeared on the Ontario Systems Blog and is republished here with permission.

A text message service (otherwise known as “SMS,” or “short message service”) is the functional and legal equivalent of a voice call placed to a mobile phone.  As such, a text message is regulated by the Telephone Consumer Protection Act (TCPA) and triggers all the same compliance requirements as do autodialed voice calls placed to mobile phones.  But TCPA compliance is only the beginning.  A compliant text message service must also satisfy the standards imposed by the Cellular Telephone Industry Association (CTIA).

TCPA Consent

Consent to text may be obtained verbally or in writing.  In fact, if you have obtained the consumer’s consent to place autodialed calls to their mobile phone you have also obtained their consent to leave prerecorded messages and text messages.  In other words, properly obtained TCPA style consent extends to all three modes of communication.  But many creditors and third- party collection agencies interpret the law very conservatively and prefer to obtain the express and specific consent of the consumer to engage in text messaging.  They do not rely on consent obtained to autodial or leave a prerecorded message on a consumer’s mobile phone to support their text message service.

CTIA Consent

The rigors associated with securing TCPA style consent may minimize your risk of violating the TCPA but they do not help you satisfy the consent requirements of the CTIA, the cellular phone industry’s self-regulatory organization.  According to the CTIA’s 2017 Standards Manual, CTIA consent requires the consumer to enroll in or subscribe to your text message service by initiating a text message to you.

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Debt Collectors’ Invitation to Text

Getting the consumer to act first and subscribe to your text message service is not easy, particularly for a third- party debt collector.  Organizations and businesses that sell or provide a product or service typically invite consumers to subscribe to their text message service via their web site, bill boards, signs, IVR scripts, marketing voice mail messages, brochures and letters.  Some even place the invitation to text on a billing envelope.

However, third party debt collectors have fewer options to present the invitation to text because of restrictions imposed by the FDCPA (e.g. unauthorized third-party disclosure of a debt) and because they are not soliciting consumers in general to text them about their product or service.  Rather, debt collectors are only interested in those consumers from whom they are collecting money.  Consequently, third party debt collectors tend to limit their invitations to text to letters, phone calls, voice mail messages, IVR scripts and web site.

Frequently Asked Questions

Not surprisingly, questions about text message service compliance requirements abound regarding the FDCPA, TCPA and the CTIA.  A few of the most common include:

Q: Can the account representative initiate the consumer’s first text so long as the consumer authorizes the initiation of the first text on a recorded line?

A: No, the first text must be initiated by the consumer using the mobile phone they are subscribing to the text message service.

Q: Is the consumer’s verbal confirmation to join a mobile database or text messaging program acceptable?

A: No. While the consumer’s verbal consent to text meets the requirements of the TCPA, the CTIA requires the consumer to actually subscribe to the program by initiating a text.

Q: May I use the word “Free” in describing standard messaging rate campaigns?

A: No, the carriers prohibit the use of the word, in this context, because the messages the consumers send to you or the messages they receive may cost the end user if they do not have a messaging plan.

Q: May I require a consumer’s consent as a condition of a settlement or type of payment?

A: No, the CTIA prohibits the business or organization from requiring the consumer’s consent as condition of a settlement or type of payment.

Regardless of the size of your collection agency, hiring a text messaging platform provider is key to managing consent and revocation of consent, pushing your texts, notifying you of deactivated numbers and assisting you in your compliance efforts.  A text messaging platform provider should also give you the reports you need to document the date and time of delivery, open rates and bounce backs to support your compliance with FDCPA requirements and state calling time and frequency restrictions.  Ideally, the platform provider will be integrated with your collection software to ensure a seamless exchange of data both to and from the consumer.

Remember: Start small, end big.  The laws surrounding text messaging for the third-party debt collector are emerging.  Begin with a self- service text messaging program, giving the consumer control over the type and frequency of the messages to be received and gradually advance to recurring message and chat programs as you become more comfortable with the text messaging medium of communication.  Those are the baby steps you should take as this new form of communication becomes even more prominent among your account portfolio.