Organizations evaluating whether texting is right for them will encounter data security, legal, and compliance concerns as chief obstacles to overcome in conversations with team members.
At Hustle, we’ve helped thousands of organizations of all sizes overcome these hurdles with product leadership, subject-matter expertise, a robust security program, and contractual agreements that can give your team the confidence they need to get texting.
Note: the articles in this series are for general informational purposes only and do not constitute legal advice. Hustle is not a law firm, and reading this article does not create an attorney-client relationship. Laws and carrier policies change and can vary by jurisdiction and use case. You should consult qualified counsel about your specific situation.
In this article, we’ll walk through TCPA (& other laws) and how Hustle can help.
What laws do I need to follow for texting?
- How do we make sure we’re TCPA compliant?
- What about these mini-TCPAs?
How do we make sure we’re TCPA compliant?
When it comes to texting campaigns, the keystone law that every legal department should be aware of is the Telephone Communications Privacy Act (TCPA), a federal law enforced by the FCC that regulates telephone marketing. The TCPA is intended to reduce telemarketing practices that most would consider abusive, but it’s also not uncommon for well-meaning marketing teams to get hit with a TCPA suit because they did not appropriately honor audience requests to unsubscribe.
Collecting express written consent before messaging your audience members is the single best way to avoid TCPA violations. If you’ve already been doing this, great! Hustle’s keywords and automations products will help you collect subscribers in a compliant manner when your audience members text to opt-in. If you’re new to texting and not sure whether you’ve done everything correctly up until now, then you should keep reading.
The TCPA is especially restrictive of certain kinds of “autodialed” or prerecorded calls and texts unless the recipient has given prior consent. In 2021 (Facebook v. Duguid), the U.S. Supreme Court clarified that these restrictions only apply to systems that can use a random or sequential number generator to store or produce phone numbers for dialing. In other words, not every automated or mass-messaging system counts as an “autodialer” under the law.
In a legal opinion letter we’re making publicly available here, you can refer to our opinion in depth.
The tl;dr though is that Hustle is not an autodialer. Therefore, the consent rules of the TCPA generally do not apply to messages or calls placed via the Hustle application.
We should note that the FCC, from time to time, will issue updated guidance regarding the contours of the TCPA, including recently clarifying acceptable methods for how consumers consent to receive text messages, and so TCPA requirements that affect all your texting campaigns are subject to change. For now, the important detail is that Hustle, thankfully, is not an autodialer, so you’re safe to keep Hustling.
What about these mini-TCPAs?
In addition to the federal TCPA, some states have passed stricter, state-specific laws related to phone and text marketing. So-called “mini-TCPAs” have passed recently in Florida and Texas, for example, which govern messaging to recipients living in those states. Unless you are certain that your texting campaigns will not go to any residents of Florida or Texas, it will be worth your time to be aware of those state-specific requirements.
The Florida Telephone Solicitation Act (FTSA) is in many ways stricter than the TCPA. But, still, Hustle’s products firmly do not fall within the FTSA definition of an autodialer. This is because a human provides the Hustle product with numbers they want texted, rather than a list that the Hustle product would select and dial from. Recent case law supports this interpretation.
Meanwhile, in Texas, recently passed legislation (SB140) extends an existing telephone solicitation law to include text messaging. The Texas mini-TCPA is unique in that it requires users of telephone marketing to register with the state and to provide a $10,000 bond to insure against violations. This requirement applies to any business that makes a “call or other transmission, including a transmission of a text or graphic message or of an image, initiated by a seller or salesperson to induce a person to purchase, rent, claim, or receive an item.” There are a number of explicit exemptions, like 501c3s and educational institutions, but a good rule of thumb for whether or not this extension of the law to texting applies to you now is whether your team determined if the previous law applied to your previous communications at all.
More mini-TCPAs will inevitably be drawn up; we’re aware of a few in the works and we welcome efforts to encourage brands to only text people who expect to hear from them. Building trust with your audience starts with compliance. No one wins if texting becomes email… so let’s all do our part to keep this an effective and impactful channel.
We know that navigating the ins and outs of texting compliance can feel overwhelming, but rest assured, the Hustle team is here to help. Our team is made up of experts who do the heavy lifting to make your registration process as easy (and transparent) as possible.
