This article informs Index users that they must comply with all applicable laws and industry guidelines when using the Broadcast messaging feature.
Compliance Overview
Broadcast is a feature available for Index users who wish to "broadcast" the same message to multiple contacts at once. You are the writer, initiator, and sender of the message, and you have sole control of the messages you create and send through Index.
As stated in the Index Terms of Service, it is up to you, as the sender of messages using Index, to understand and comply with applicable laws. Since it is your responsibility to comply with laws, you should consult with your legal counsel as to what laws apply to you and how you need to conduct yourself to comply with those laws.
While Pinger cannot provide any legal advice, we suggest that at the very least you review, understand and follow the requirements of the Telephone Consumer Protection Act (TCPA) (see https://www.fcc.gov/sites/default/files/tcpa-rules.pdf and https://www.fdic.gov/regulations/compliance/manual/8/viii-5.1.pdf and https://en.wikipedia.org/wiki/Telephone_Consumer_Protection_Act_of_1991) and the wireless industry’s self-imposed guidelines promulgated by the CTIA (Cellular Telecommunications and Internet Association) in its 2019 Messaging Principles and Best Practices. Additional laws may apply to you depending upon where you live.
The basics to remember are that if want to use Broadcast to market to your customers, you must:
- Obtain the prior written consent of all message recipients to send marketing messages to them; and
- Honor all opt-out requests.
Violations of the TCPA can be very onerous because the TCPA allows consumers to sue for damages of $500 per call or text message violation or $1500 per call or text message violation if the violation was knowing or willful.
This information is provided “as is” and no legal advice is being provided to you. AGAIN, YOU MUST SEEK THE ADVICE OF YOUR OWN LEGAL COUNSEL ON HOW TO MARKET TO YOUR CUSTOMERS.
Obtaining Prior Written Consent
The TCPA contemplates two types of consent: prior express consent and prior express written consent. Simple prior express consent applies to informational calls and texts. Prior express written consent applies to marketing calls and texts and requires a “written” agreement.
(A) Simple consent for informational messages.
To send an informational message, only simple prior express consent is needed. And it is relatively simple to obtain, with one caveat.
It can be written or verbal - and includes voluntarily providing one’s cellular number without any instruction prohibiting contact at that number – and there is some relation between the communications and the reason for which an individual provided their number. The caveat is that if a caller’s number is “captured” and not given, then the caller cannot be considered to have given an invitation or permission to receive calls and texts at that number.
(B) Prior written consent for marketing messages and “double” opt-in.
1) Written Consent.
Prior express written consent is a heightened form of consent and must be evidenced by a “written” agreement signed by the call or text recipient. Under the federal E-Sign Act, “written” consent can be obtained through a text message exchange because text message approval constitutes an “electronic signature” as defined under 15 U.S.C. §7006(5).
2) Double Opt-In.
While a text message exchange can constitute a “written” agreement, there should be no question about whether consent is given. That’s why industry participants recommend a “double opt-in,” which is a process that requires the user to first opt in, and then receive a confirmation message allowing them to opt out.
The CTIA (Cellular Telecommunications and Internet Association) describes the “double” opt-in approach in Section 5.1.2.1 of its 2019 Messaging Principles and Best Practices:
“After the Message Sender has confirmed that a Consumer has opted-in, the Message Sender should send the Consumer an opt-in confirmation message before any additional messaging is sent.”
The confirmation message should include:
(1) the program name or product description;
(2) customer care contact information (e.g., a toll-free number, 10-digit telephone number, or HELP command instructions);
(3) how to opt-out;
(4) a disclosure that the messages are recurring and the frequency of the messaging; and
(5) clear and conspicuous language about any associated fees or charges and how those charges will be billed.”
The following text message exchange illustrates the double opt-in requirement:
First Message:
“Text “YES” to receive marketing alerts via text about the Company’s products and services. Message and data rates may apply. Message frequency is approximately one per week. Reply HELP for help, CANCEL to cancel. “
Recipient: “YES”
Second Message:
“Welcome to the Company’s marketing alerts via text about the Company’s products and services. Message and data rates may apply. Message frequency is approximately one per week. Reply HELP for help, CANCEL to cancel.”
Opt Outs
Opt-out capability is required for all messaging types, under both the TCPA and CTIA (Cellular Telecommunications and Internet Association) guidelines.
In 2015 the FCC ruled that “consumers have a right to revoke consent, using any reasonable method including orally or in writing … in any manner that clearly expresses a desire not to receive further messages.”
In 2012 the FCC stated that sending opt-out confirmations is not a TCPA violation provided that the following criteria are met:
- The sender previously obtained the consumer's express consent to receive the sender's texts (including to receive autodialed texts).
- The confirming text:
- merely confirms the consumer's opt-out request;
- does not include any marketing or promotional information; and
- is the only additional message sent to the customer after the sender's receipt of the opt-out request.
- The sender either sends the confirming text within five minutes of receiving the opt-out request or shows that the delay was reasonable
The CTIA (Cellular Telecommunications and Internet Association) guidelines state the following:
“Message Senders should acknowledge and respect Consumers’ opt-out requests consistent with the following guidelines:
- Message Senders should ensure that Consumers have the ability to opt-out of receiving Messages at any time;
- Message Senders should support multiple mechanisms of opt-out, including phone call, email, or text; and
- Message Senders should acknowledge and honor all Consumer opt-out requests by sending one final opt-out confirmation message per campaign to notify the Consumer that they have opted-out successfully. No further messages should be sent following the confirmation message.
- Message Senders should state in the message how and what words affect an opt-out. Standardized “STOP” wording should be used for opt-out instructions, however opt-out requests with normal language (i.e., stop, end, unsubscribe, cancel, quit, “please opt me out”) should also be read and acted upon by a Message Sender except where a specific word can result in unintentional opt-out. The validity of a Consumer opt-out should not be impacted by any de minimis variances in the Consumer opt-out response, such as capitalization, punctuation, or any letter-case sensitivities."
Index has a number of built-in features that help you to block recipients who have expressed their desire to opt out. When a recipient of a Broadcast message sends “CANCEL” after receiving a Broadcast message, they will immediately stop receiving future Broadcast messages from you. That recipient will still be able to communicate with you, just not through the Broadcast feature. If that recipient would like to opt-in to receiving Broadcast messages from you again in the future, they would need to send the message “START” to you.
Additionally, if the recipient would like to stop ALL communication from you, they would need to send "STOP" to you. Once they confirm they would like to stop all communication, you will not be able to communicate with that recipient via Index unless that recipient resumes communication with you.
While those built-features exist, it is your responsibility to manage your lists for marketing and to ensure that you only include the message recipients who have provided express written consent to receive those messages and who have not opted out of receiving them.
If you have further questions in regards to the Broadcast feature, please submit a request.