Electronic advertising is on the rise as companies seek to meet consumers where they live: online and on their cell phones. Advertising by electronic mail and text messaging can be tailored to the desired market segment. Unique messaging can be sent to an individual consumer or a discrete group of consumers to optimize campaign response. Electronic marketing is subject to myriad federal and state regulations that are based mainly on the method and the technology used to send the transmission. This alert provides a high level overview of the primary federal laws that apply to certain types of electronic marketing, which are administered and enforced by the Federal Communications Commission (FCC) and the Federal Trade Commission (FTC).

Email Marketing

Commercial email communications are governed by the Controlling the Assault of Non Solicited Pornography and Marketing Act of 2003, 15 USC 7701 et seq. (CAN-SPAM Act).

Consumer Consent

The CAN-SPAM Act requires that the consumer’s oral or written consent be obtained before the first email marketing message is sent to the consumer. Written consent may be obtained electronically, as provided in the Electronic Signatures in Global and National Commerce Act, 15 USC ch. 96 (E-Sign Act).

Before obtaining consent, the sender must tell the consumer the name of the entity that will be sending the messages and, if different, the name of the entity advertising products or services. The consent must clearly indicate the purpose of the messages and the email address for which consent is given.

Recommended best practices when obtaining consent to receive email marketing include:

1. Clearly describing the purpose of the messages (versus a blanket opt-in);
2. Giving “help” instructions;
3. If using a check-box for opt in consent, leaving the box unchecked; and
4. Providing opt-out instructions for revocation of consent.

Message Content

The CAN-SPAM Act provides that marketing email messages must include the following:

1. Identification: The message must be clearly identified as a solicitation or advertisement for products or services, and the subject line must accurately reflect the content.
2. Opt-Out Method: The message must provide easily accessible, legitimate, and free ways for the consumer to reject future messages from the sender. The opt-out may be linked to the message; this is standard practice. The link may present a menu of different email preferences, but one option must be to stop all commercial messages. No fee may be charged, and no disclosure of personal information may be required to opt out.
3. Return Address: The message must contain the legitimate return email address as well as the sender’s postal address.

Other Considerations

Companies should ensure that opt-outs are promptly honored (within 10 business days) and that they monitor any third-party service provider that administers email marketing, especially those acting as sender.

Enforcement

The CAN SPAM Act does not provide for civil suits by consumers for violations of the law. Violations of the Act can subject the company and the sender, individually, to up to $16,000 in penalties per email. Aggravated violations, such as using false information to obtain email addresses or violating the rules regarding sexually explicit emails, can result in increased monetary penalties and/or criminal prosecution.

Text Marketing

The federal Telephone Consumer Protection Act, 47 USC sec 227 et seq. (TCPA), governs the sending of advertising or telemarketing text messages to consumers.

Consumer Consent

The TCPA requires senders to obtain prior express written consent from the consumer before sending the first telemarketing text message. Written consent may be obtained electronically, as provided in the E-Sign Act.

Before obtaining consent, the TCPA requires the sender to tell the consumer the name of the entity that will be sending the messages and, if different, the name of the entity advertising products or services. The consent must clearly indicate the purpose of the messages and the cell phone number for which consent is given.

The written consent for texts must include a “clear and conspicuous” disclosure notifying the potential text recipient that:

1. By signing the consent, the individual is authorizing the company to deliver telemarketing texts to the number provided by the individual using an automatic telephone dialing system; and
2. Signing the consent is not a required condition of purchasing any property, goods, or services.

Recommended best practices when obtaining consent to receive text marketing messages include:

1. Clearly describing the purpose of the messages (versus a blanket opt-in);
2. Giving “help” instructions;
3. If using a check-box for opt in consent, leaving the box unchecked;
4. Providing opt-out instructions for revocation of consent;
5. Indicating how many (a range of) messages may be sent;
6. Disclosing the possibility of additional carrier costs; and
7. Providing a double opt-in (text confirmation of consent).

Content of Messages

Best practices for text messages include incorporating “assistance” language into the text (e.g., “Text STOP to stop (conf. msg will be sent) or email XXX” and “Text HELP for help”) and “data” language (e.g., “Msg & Data rates apply”).

Other Considerations

Companies should ensure that opt-outs are promptly honored and monitor any third-party service provider that administers text message marketing, especially those acting as sender.

Enforcement

The TCPA does provide a private right of action to consumers, as well as statutory penalties in the amount of $500 or $1500 per text message. Companies and their telemarketers both may be held liable. Administrative enforcement is also available under the TCPA.

Telemarketing to Cellular Phones

The FTC Telemarketing Sales Rule governs interstate calls made to promote or sell goods or services. (16 CFR Part 310). The rule prohibits calling telephone numbers listed on the National Do Not Call Registry and imposes other substantive limitations and disclosure requirements on telemarketing calls. Although certain types of companies, such as nonprofits or banks, may be exempt from this rule, vendors that provide telemarketing services on behalf of exempt companies are subject to it.

The FTC regulation defines “telemarketing” (in pertinent part) as follows:

a plan, program, or campaign which is conducted to induce the purchase of goods or services or a charitable contribution, by use of one or more telephones and which involves more than one interstate telephone call.

The FTC Telemarketing Sales Rule does not apply to calls made to consumers with whom the caller has an “established business relationship,” which extends for up to 18 months after the last purchase of products or services.

National Do Not Call Registry

The National Do Not Call Registry is administered by the FTC and enforced by the FTC and the FCC. The system enables consumers to register their individual telephone numbers in a centralized database; telemarketers are prohibited from calling telephone numbers listed in the national registry.

Individual Company List

In addition, each company must maintain its own internal do not call list; neither the company nor its telemarketers may call any consumer who has asked the company not to call him or her again.

Content of Call

The following must be “promptly” disclosed to the consumer during the call:

1. The seller’s name;
2. The purpose of the call (to sell goods or services); and
3. The nature of such goods or services.

If the call offers a promotional prize, additional disclosures must be made. Further, the caller must clearly disclose the following to the consumer regarding the goods or services:

1. The cost and quantity;
2. Material restrictions, limitations, or conditions; and
3. The refund policy (if applicable).

Predictive Dialers and Prerecorded Messages

The use of predictive dialers or prerecorded messages in telemarketing is governed by the TCPA and set forth in FCC regulation, 47 CFR § 64.1200.

Consumer Consent

The FCC TCPA regulation prohibits using predictive dialers or prerecorded messages for “any telephone call that includes . . . telemarketing” made to a cell phone, other than a call made with “the prior express written consent of the called party.” 47 CFR § 64.1200(a)(2). Prior to October 2013, prior consent was not required to be given in writing. “Prerecorded messages” include artificial voice messaging.

The FCC has previously concluded that such written consent may be given by a borrower by providing his or her cell number to the creditor, such as on a credit application. The 2008 FCC Ruling 07 232 declared:

Autodialed and pre-recorded message calls to wireless numbers that are provided by the called party to a creditor in connection with an existing debt are permissible as calls made with the “prior written consent” of the called party.

The ruling specifically clarified that:

Creditors and debt collectors may use predictive dialers to call wireless phones, provided the wireless phone number was provided by the [cell phone] subscriber in connection with the existing debt. We note, however, that where the subscriber has not made the number available to the creditor regarding the debt, we expect debt collectors to be able to utilize the same methods and resources that telemarketers have found adequate to determine which numbers are assigned to wireless carriers, and to comply with the TCPA’s prohibition on telephone calls using an autodialer or an artificial or pre-recorded voice message to wireless numbers.

It is not clear whether this reasoning would apply in other contexts.

The “called party” for the purposes of consent is the actual owner of the telephone assigned to the number called. The U.S. Seventh Circuit Court of Appeals held that calls to consumers who had acquired cell phone numbers of consumers violated the TCPA because the called party was not the original consumer. In that case, a class-action suit was filed against a debt collector by cell phone holders whose numbers were reassigned from debtors who had given the numbers to the creditor. Soppet v. Enhanced Recovery Company, 679 F.3d 637 (7th Cir. 2012). The court decided that consent lapsed with the consumer’s abandonment of the number.

If cell phone numbers are obtained for consumers from third parties (such as from skip-tracers) or otherwise not from the consumer in a document submitted in connection with the creditor or by phone, then live, manual calls can be made to the new number and the consumer’s express consent can be obtained prior to using autodialed or prerecorded messages for the new cell number.

Other options include:

1. Making the first call manually and live (§227(b)(1) is limited to automated calls), then switching to a predictive dialer after verifying that the cell number still is assigned to the customer;
2. Using reverse lookup to identify the current subscriber to the cell number; and
3. If applicable, asking the creditor who obtained the borrower’s consent whether the borrower is still associated with the cell number—and getting an indemnity from the creditor in case a mistake has been made. (Indemnity may be automatic under §10 of the 2008 TCPA Order, which states that calls placed by a third party collector on behalf of a creditor are treated as having been made by the creditor itself.)

Based on this information, telemarketing best practices for consent include:

1. Obtaining express prior written consent from each consumer before using auto-dialers or prerecorded messages to cell phone numbers;
2. Maintaining procedures to determine when cell phone numbers have been reassigned and ceasing calling those numbers; and
3. If cell phone numbers are obtained from third parties (e.g., skip-tracers) or otherwise not from the borrower in a document submitted in connection with the creditor or by phone, making live, manual calls to the new number and then obtaining the consumer’s express written consent prior to using autodialed or prerecorded messages for the new cell number.

Content of Messages

For prerecorded messages, the FCC requires the message to:

1. Announce the ability to opt out at the onset of the message;
2. Make opt-out availability last for the duration of the call;
3. If the consumer opts out during the call, the messaging system must include a mechanism for adding the consumer’s telephone number to its own do-no-call list; and
4. If the message is left on the consumer’s voice mail, the message must include an 800 number for the consumer to opt out of future calls.

Enforcement

Calls made in violation of FTC do not call rules or that otherwise violate the Telemarketing Sales Rule can result in significant monetary penalties against the company or its telemarketer. Violations of FCC do not call rules or calls that otherwise violate the TCPA regulation also are subject to significant enforcement penalties. The TCPA provides a private right of action to consumers, as well as statutory penalties in the amount of $500 or $1500 per text or call.

Other Considerations

Separately, the FCC regulation prohibits the disconnection of any telemarketing cell phone call using a predictive dialer or prerecorded message prior to at least 15 seconds or four rings after the call is made. 47 CFR § 64.1200(a)(6).