Best Practices

Tips for a Litigation Free SMS Campaign

Is minor human involvement enough to disqualify a software dialing platform as an Automated Telephone Dialing System?

Your sms campaign should generate leads - not lawsuits.

The Good News: SMS marketing has been proven to be an incredibly effective lead generation method.

The Bad News: SMS marketing is equally effective at generating TCPA lawsuits. In fact, unless you take the proper steps, commencing an SMS campaign is like taping a paper target on your back.

The Reason Why:  Phone calls themselves are not proof that they were made using an autodialing system or prerecorded voice.

The very existence of a text solicitation can prove the use of an autodialing system

If you deny using an autodialing system during the course of litigation, the Plaintiff’s job becomes more difficult, unless he can produce a recording to bolster his case.  And, unless they’re a seasoned professional plaintiff or class action attorney, it’s unlikely someone will turn on a call recording app before answering a call.

In contrast, the very existence of a text solicitation can prove the use of an autodialing system, which makes the Plaintiff’s job a lot easier.  Worse still, texts can remain on a recipient’s phone indefinitely, to be shared with attorneys, judges, and regulators.   In light of the TCPA’s absurdly long statute of limitations, failing to take a few simple steps prior to commencing an SMS campaign can create thousands of ticking time bombs, each of which has the potential of exploding without warning for four years after the day they’re sent.

So to reap the benefits of an SMS campaign without looking over your shoulder for the next 48 months, make certain you lay the groundwork by following these simple guidelines before you start.

Secure Your Data Sources

If you purchase consumer contact data from third parties, don’t trust providers who claim their data is “full opt in” or “TCPA compliant.”   Unless your company or brand is mentioned in whatever mechanism is being used to collect express consent, the data it is not compliant and should be treated like poison.  Ask for the URL of each data collection page and make certain your brand is listed before you pay for a single record.

If you collect your own data, make certain your website forms and other mechanisms incorporate the required verbiage that will generate a valid opt-in.  Professional plaintiffs and class action attorneys are constantly trolling the Internet in search of non-compliant opt-in forms in order to draw non-compliant calls.

Keep Records

There’s only one thing worse than paying $10,000 for a Super Bowl ticket and leaving it on your kitchen counter on game day: trying to convince a judge in a TCPA trial that you used a fully-compliant opt-in mechanism and being unable to prove it.

It is critical to maintain copies of opt-in records (Name, number, email, URL, and time/date stamp), along with screenshots of each data collection page for at least four (4) years after your last contact with a consumer.   In addition, be certain to keep transaction records related to your SMS traffic, including opt-outs, replies, and date/time stamps.  If you switch SMS providers, remember to import these transaction records to your new provider.  Without proper records, whatever you spent for valid opt-in data was utterly wasted.