TCPA Text Message Marketing Definition: Consent Is Not a Condition of Purchase
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TCPA Text Message Marketing Definition: Consent Is Not a Condition of Purchase

Derek: Hi, everyone. Derek Johnson with I’m here at Innovista Law, the home of the
TCPA Defense Force. I’m sitting with Joe Bowser, a TCPA attorney,
so Telephone Consumer Protection Act. We’re talking about how the TCPA impacts
text message marketing. One of the questions we get asked here at
Tatango a lot is “What does consent is not a condition of purchase mean?” Because if you opt into a text messaging campaign
and the brand is doing it correctly, you’re going to see on that terms and conditions,
that it’s going to say, “Consent is not a condition of purchase.” But what does that actually mean? So, Joe, let’s kick it off. What does this mean, “Not a condition of
purchase?” Joe: Right. So we’ve talked about what a written agreement
under the TCPA requires, right? Derek: Yeah. Joe: One of those elements is this…the stipulation
or disclaimer that “Consent is not a condition of purchase.” And what that really is telling the consumer
is I don’t have to agree to give my phone number and consent to be sent text messages
via an auto dialer if I wanna buy this camera, this teddy bear, this apple, whatever it is. Derek: Okay. Joe: So the consumer needs to know that I
can withhold my consent to get marketing messages, and still complete this transaction. It’s that simple. Derek: Okay. Joe: It’s letting them know, hold on now. If you wanna finish the transaction for the
teddy bear, you can go ahead. Derek: It’s not required. Joe: You don’t have to do this. Derek: Because I think back in the day, I
do remember, like, retailers, I’m not gonna name names here, but you would try to purchase
something, and they’d be like, “Oh, we need your phone number to complete the purchase.” Is that kind of where this is coming from
or protecting consumers that just don’t wanna give up their phone number to just make
a purchase? Joe: That’s exactly right. Derek: Okay. Joe: So there are all kinds of things in form
agreements that we sign every day. Our agreements with our wireless carriers,
right. We probably…if we went through it line by
line, we probably wouldn’t agree to many of those. Derek: Yeah. Joe: But Congress and the FCC wanted to give
consumers extra protection around text messages and auto-dialed calls, particularly, those
that market a particular good or service. Derek: Yeah. Joe: And they wanted consumers to know that
you don’t have to accept these messages or calls if you don’t want to and you can
still engage in commerce. Derek: Interesting. And what happens if, let’s say, the brand
doesn’t disclose that to a consumer? Is it just increasing the risk of a TCPA violation? Joe: You should assume that a plaintiff’s
attorney on a TCPA case will argue that that written agreement was not valid under the
TCPA. So you… Derek: Okay, because it misses that. Joe: It misses the required element. Derek: Wow, okay. Joe: So if you’re missing one piece of it,
you didn’t…you know, you’re either in for all of it or not. And so if you’re missing that, “Consent
is not a, you know, condition of purchase,” language, the TCPA plaintiff’s attorney
will say that agreement doesn’t mean anything. Derek: It didn’t work under the TCPA. Joe: Exactly. So even though you’ve got the first five
elements and you’re missing the sixth, they’ll say that agreement doesn’t matter. It doesn’t comply with the TCPA regulations,
and I didn’t give you consent. Derek: Wow. So even if you did give consent, it wasn’t
the right consent. That’s where you can get in trouble. Joe: Exactly. Derek: And what are the penalties for violating
the Telephone Consumer Protection Act. Let’s say, you don’t get the right consent. You don’t do this correctly. What is a brand looking at? Joe: The exposure can be tremendous. Derek: Okay. Joe: So it’s…so under the TCPA, a negligent
violation of the TCPA is $500 per call or a message. And then if they can show that you willfully
violated the TCPA, and that’s probably not the case if you just… Derek: Miss something, yeah, okay. Joe: …bungled your disclosure language. The damages there are $1,500 a message or
call. Derek: And that’s per text message to each
individual person? Joe: Exactly. And that’s just the lawsuit. So the FTC, the FCC can come after you and
they have their own statutory penalties and fines. Derek: Wow. Joe: That can run up to $20,000 a message. Derek: Jeez. Okay. So I think the real takeaway here is make
sure that in your terms and conditions when you opt into a text messaging campaign, make
sure, “Consent is not a condition of purchase.” And, essentially, that means that you don’t
have to give up your phone number just to make a purchase. Joe: Correct. Derek: Okay. Joe: Right. Derek: Man, that’s crazy. So, again, I think TCPA compliance is super
important, not only from a consumer perspective, just to make consumers feel okay, and, you
know, have a good experience with their text messaging campaign, but also, from a penalties
perspective. $500 to $1,500 per text message can be very,
very expensive. So, “Consent is not a condition of purchase,”
hopefully, we’ve explained what that means, and what it means when you don’t include
that in your text message marketing terms and agreement that you opt into. Again, my name is Derek Johnson with I’m sitting with Joe Bowser from TCPA Defense
Force at Innovista Law. Thanks for watching our video today. If you like this video, be sure to give us
a thumbs-up on YouTube. If you wanna see more of these types of videos,
be sure you subscribe to our YouTube channel. And if you have comments or questions, please
leave a comment or a question in the comment section below.

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