Dealers Cautioned On Text Messaging

Dealers Cautioned On Text Messaging

Dealers thinking of using text messaging as a sales tool would be wise to be mindful of federal regulations regarding phone solicitations. According to NADA a text message may be deemed to be a phone call, an email, or even both under federal law, and are therefore potentially subject to a number of federal restrictions.

The Federal Communication Commission (FCC) enforces the law, the Telephone Consumer Protection Act (TCPA), that governs phone calls. The FCC considers text messages to be phone calls and at least one federal court has reviewed this issue and agreed. Accordingly, NADA advises that:

You cannot send a test message solicitation to a phone number that is on your company-specific Do Not Call (DNC) list.

You cannot send a text message solicitation to a phone number on the national DNC list.

You cannot send any text message using an automated dialer system to a cell phone whether the number is on the DNC list or not, unless you have called the consumers prior express consent account.

Note: the TCPA definition of automated dialer system may cover computers used to send automated text messages. This means the FCC may consider any text sent by a computer to be improper under the TCPA (unless you have the consumers prior express consent).

A text message may also be considered an email, in which case it would be subject to the CAN SPAM Act, which governs email messages. That means it must contain your physical mailing address, cost-free-opt-out mechanism, etc. Even so, the FCC bans you from sending commercial email messages to wireless devices without prior permission. There are no exceptions, other than express prior authorization.

In short, the FCC believes text messages are subject to both TCPA and CAN-SPAM regulations and you are cautioned to do the following before using it for commercial purposes:

Obtain the recipients express prior consent (in writing if possible);

Consult your company specific and national DNC list before sending one;

Make sure you are meeting the disclosure and opt-out requirements of CAN SPAM