by Leonard A. Bellavia, Esq.
Wireless phones have come quite a long way from the days of the beige “candybar” shaped phone and the “bag” phone Today, phones small enough to fit in your pocket can surf the web, send and receive e-mail, text messages and social network updates from virtually anywhere. Indeed, technology has given business many a near-instant access to their consumers. However, the law does provide limitations on how businesses can communicate with costumers. With fines up to $11,000 per infraction, now is a good time to review your own processes for compliance. Two laws in particular address the new ways businesses communicate with consumers: The CAN-SPAM Act and The Telephone Consumer Protection Act (“TCPA”).
The CAN-SPAM Act prohibits a business from sending unwanted e-mails that contain advertisements or promotions of a commercial product or service. However, e-mails in regard to a transaction with the consumer are exempt. To avoid violating CAN-SPAM, a business must show that the consumer provided “express prior authorization,” either orally or in writing, to receive commercial e-mails. This is commonly referred to as an “opt-in” provision. Once the consumer gives authorization, subsequent communications must give the consumer the ability to revoke authorization and receive no further communications. That is commonly referred to “opt-out.”
The Telephone Consumer Protection Act (“TCPA”), addresses how a business may communicate with a consumer via text messaging. TCPA established a National Do Not Call List, where consumers can halt certain kinds of telemarketing calls by placing their names and phone numbers on the list. If a consumer places his or her mobile device number on the National Do Not Call List, a business cannot call or text the individual unless the business gained prior consent or has established a business relationship with the consumer.
Look for the following practices at your business to see whether you may have a CAN-SPAM or TCPA compliance problem:
- Do your employees use their personal mobile devices to communicate with consumers either by e-mail or text message? If so, how do you verify that the consumer has agreed to receive communication from your business? How do you check to see if the consumer is on the National Do Not Call List? How do you track and review these messages between the employee and the consumer?
- Do your employees use their personal e-mail accounts to communicate with consumers? Do these e-mails give the consumer the ability to “opt-in” and/or “opt-out?”
- If your employees use e-mail accounts provided by your business, do these e-mail messages comply with CAN-SPAM and TCPA by allowing for a consumer to “opt-in” and/or “opt-out?”
- Do you have a process to answer allegations by consumers that claim your business violated CAN-SPAM or TCPA? Do you have a process to cease sending commercial messages once a consumer “opted-out?”
Our firm is ready to help you answer questions like these. Please call us at 516-873-3000 so that we can help you formulate a compliance program that allows you to use these new methods of communication while minimizing your exposure to the costly penalties associated with violating these laws.