John F. Possumato, Esq

Automotive Mobile Solutions LLC

john@Possumato.com

Call or Text 856 577 2763

Text AMS to 69696 for Digital Business Card

Ready, Set, Text! Best Practices for Texting Compliantly

Wednesday, May 4, 2016

Riverwalk South

Agenda

• Hot Topic in Legal Education (Be Afraid, Be Very Afraid)

• The Mobile Consumer – Text Communication

• The FCC TCPA

• The Difference Between Text Message Marketing & 2-way SMS Communication

• Text Message Marketing Rules

• 2-Way SMS Communication – “TextChat”

• Practicing “Safe Text”

• Extra Bonus – “When is a Text, not at Text”

• Questions

Hot Topic in Legal Education -

…Any Questions as to Why?

+ Just recently… Buffalo Bills $3.5M (unlawful texting)!

And Lest We Forget…

•$2.5 million – The settlement amount.

•$600,000 – Fees collected by the attorneys representing the consumers.

•$150,000 – Fee for administration of the claims.

•$10,000 – The amount the lead plaintiff received.

•$1.74 million – The amount to be paid out to class members.

•$175 – The amount to be paid out to individual class members that received the first text message.

•$150 – The amount to be paid out to individual class members that received the second unsolicited text message.

•$500 – The amount paid out to individual class members that received the second unsolicited text message, after

they opted out after the first one.

•$675 – The amount paid out to individual class members that received both the first unsolicited text message and

the second unsolicited text message, after they had previously opted out.

Most Recent TCPA Enforcement Rules

Identifying “Unwanted calls and texts are

the number one consumer complaint to

the FCC…

…and strengthening enforcement -

The Dissenting Vote Says it All

The Mobile Consumer –

Text Communication

• Sending and Receiving Text Messages is the prevalent form of communication for Americans younger than 50 “The New Era of Communication” Gallup 2014

• Two Thirds of Americans own a Smartphone and 97% of them Use Text Messaging at Least Once During a One-Week Survey Period April 2015 Pew Research Report

• 90% of All Text Messages are Read Within 3 Minutes 2010 (10% of emails are opened) SinglePoint Whitepaper

• Usage of a Smart Phone -#1 Sending Texts #2 Receiving Texts #3 Reading Email #4 Surfing the Internet #5 Alarm Clock #6 Making Calls Hallo Survey, Featured in UPI October 2014

2-Way SMS Communication “TextChat”

Becoming Far More Prevalent Inside Showrooms and Service Departments (whether

management knows it or not)

Text, or You Won’t Be Heard

The FCC TCPA • Definitions:

TCPA – Telephone Consumer Protection ActFCC – Federal Communications CommissionATDS – Automatic Telephone Dialing System or Auto-DialerText Messages – Text messages are “calls” for the purposes of the TCPA.

• Prior to September 23rd, 2013 you could text based on having an established business relationship with a customer. This is no longer the case. The TCPA rule no longer allows the “established business relationship” clause to circumvent written authorization. This means automobile dealerships must attain “prior express written consent” before telemarketing, advertising or texting from an auto-dialer, prerecorded device or software solution. Written consent must be clear and conspicuous and not be a condition of purchase. To comply, written consent can be attained with a written signature, through email, a website form, or a text message. You may not, however, send an ATDS text message requesting a person to opt-in.

• Prior to July 10th, 2015 FCC Declaratory Ruling and Order the definition of an ATDS or auto-dialer was unclear. The current ruling as of, July 10th 2015, and the most recent language states: “Auto-dialer” for the purposes of the TCPA, is any technology with the capacity to dial random or sequential numbers, regardless whether the technology has the current capacity to make the call in issue & equipment to send Internet-to-phone text messages.

• “Opt In” Text Regulation. A “May I Text You” text cannot be sent without prior written consent. A business cannot text a customer to ask if it is okay to text them without prior express consent. We see CRM vendors and texting vendors break this rule daily.

Violation is Like “Jaywalking” You Might Not Get Caught…But If You Do…

The Difference Between Text Message

Marketing &

2-Way SMS Communication

Text Message Marketing: non-interactive (not two-way “one on one” SMS text communication)

Usually used as Text advertising specials/substitute for email blasts

– Opt-In subscription based specials and messages

– Status notifications/updates

– Single message responses

– Limited use for communication, service sales, customer approvals etc.

Text Message Marketing falls under specific TCPA Regulations –

Text Message Marketing Rules

Can be solicited with “keyword/shortcode” – “Text DEAL to 69696

Must obtain explicit written permission from the recipient to subscribe to very explicitly defined messagesFor example, if you inform the potential subscriber recipient

you will send “up to 3 service specials a month,” for example, you can not send four and you can not offer a sales special such would be a violation subject to sanction

Always must include specific “stop” disclaimer language – and it must strictly enforced (Lithia Example)

Text Message Marketing Violation

Note: Any Variation of “One-Way” Text

Message Marketing Falls Under Text

Message Marketing Rules

The “New Wave” of Dealership Communication

For Sales – Prospects & Customers • Web based links

• CRM based

For Fixed Ops – Expanding Geometrically

2-Way SMS Communication “TextChat”

• No Switchboard delay

• Status update, total cost, additional recommended repairs, even a full video of vehicle “walk around” can be received direct, without interrupting phone calls or time consuming visits

• Eliminates confusion, transparent without interruption

Automotive News 4.4.16

Two-Way, One on One “TextChat” TCPA Rules

• Receive and Retain Appropriate “Express Written Consent” –Make it Part of the Process – Note: Cannot send a “can I text you” text! …and even if an old customer text’s you first, without Express Written Consent, you are in violation

• Add Permission and “Message and Data Rates May Apply Disclaimer” to all Customer-Facing Calls to Action

• Send an Initial Confirmation Text Message with Opt-Out Instructions – the “Double Opt-In Message” with Opt-Out Information

• Make Sure You Have “Fool Proof” Automated “Opt-Out” Procedures in Place – 5 Magic Words “End” “Unsubscribe” “Cancel” “Stop” “Quit”

2-Way “TextChat”

TEXTCHAT is interactive, just like texting on your phone, best to make it platform based

• Full text conversation between your representative and customer

• All text communication can be recorded and archived

• Can attach pictures and video

• Once opt-in (“Express Written Consent”)received it is good until cancelled by customer

• Cancelled by 5 “opt out” words – “End” “Unsubscribe” “Cancel” “Stop” “Quit”

• Conversation can be reopened at any time

2- Way SMS Text/’TextChat’ falls under different TCPA Regulations

Step 1: A TCPA Compliant SMS Texting Platform

• Permanent Archive Record of Written Consent from the Customer

• Control of “Opt-Out” Message, Archive Record of Proper “Message and Data Rates May Apply” Disclaimer

• Archive Transcript or Record of the Text Conversation by the Dealership

ABSENCE OF THESE THINGS IS AN INVITATION TO VIOLATION

Practicing “Safe Text” Recommendations

Step 2: Institute An Official Texting Policy

Practicing “Safe Text”

• Prohibit All Personnel from Texting Outside of the Compliant Texting Platform.

• Prohibit All Communication and Use of Cell Phone Number other than for text communication, for those that Consent to “TextChat” in Initial Prospect Inquiries

• Require “Message and Data Rates May Apply Disclaimer and Double Opt-In, Opt-Out Instructions to be Sent with First Text

• Archive all “Opt-In” and “Double Opt” Consent for all Customers and Prospects Permanently

• Monitor and Control All Texts from Your Team to Ensure that All Policies are Being Followed

Investigate a Software Solution that Enables Fully Compliant Texting

What to Look For in a Compliant Texting Platform

Practicing “Safe Text”

• Written Consent Permission on all In-Bound and Out-Bound Initial Texting Contacts, Archived for Easy Retrieval

• “Message and Data Rates May Apply” Disclaimer on all customer facing Text Calls to Action, Including Initial “Opt-In” Message Sent to Customer’s Cell Phone, any Online Link “Click to Text” Form, etc.

• Automatically Sends the “Opt-Out” Language on the First Text Message Sent a Customer

• Automatically “Opts-Out” to all “Opt-Out” Keywords (STOP, CANCEL, END, QUIT), and Replies to the “HELP” Keyword (no room for human error)

Additional Desirable Features -

Practicing “Safe Text”

• A Vender that Regards Text Communication Private Property of Dealership, not Vendor – Beware of “Free” or “included” Text Systems Offered from Lead Generation Vendors

• Dedicated Platform For Sales and Fixed Ops/Service Department

• Ability to Operate System by Desktop or Mobile Device (never revealing Mobile Dealership User’s Direct Cell Phone #)

• Ability to Text Pictures and Video as Well as Text

• TCPA Compliant Ability to “Opt-In” a Customer Multiple Ways

– By Direct Text Message – From Desktop or Mobile Device Through Cloud

– Desktop or Mobile Call Out Link (for all digital communication)

– By Distinct Keyword for Business Cards, Non-Digital Advertising “Text JIM to 69669”

– By Service “Landline” Phone Number – Where Texts Go To Service Text Platform

Still More Additional Features -

Practicing “Safe Text”

• Text Notifications by Text (to Specific Personnel), E-Mail and PC exe “Pop-Up” (and ability to respond by mobile or desktop)

• Text Based Reputation Management Capabilities

• White Label and Administration “Parent” Platform for Overseeing and Managing Multiple Stores

• Personal and Attentive Platform Support

• Do Not Assume CRM Provided Texting Capabilities are Compliant…Sometimes they are Not, and

Remember Compliance with TCPA Regulations, and Liability, Ultimately Rests with Dealership Not with the Vendor

Extra Bonus –

When is a Text not a Text?(According to the TCPA Regs)

These are “above the lock screen” push/text notifications, are not subject to TCPA regs, a they are

tied into an private App or Google Wallet

When it’s a Mobile App or Mobile (Apple/Google)

Wallet Push Notification

Push Notifications, Geo-Fenced Texts, or

Texts by Beacons without a TCPA Worry?

Mobile Wallet or Customized App Based Solutions

You Can Trigger these by Geo-Fence or

Beacon through a Mobile Wallet Coupon

Or Trigger these by Geo-Fence or Beacon

through Your Own App

…and from an App Get Feedback on Precisely

When A Prospect Enters A Geo-Fence

…but still this type of messaging currently doesn’t fall under TCPA Regulations.

Real Live Time Intelligence Information (reported back by text or email) Whenever a User Enters any Geo-Fence and Receives Targeted Messages (immediate feedback to BDC, for instance, that someone just entered a targeted competitor’s lot or service location)

Ready, Set, Text! Best Practices for Texting

Compliantly

QUESTIONS?

John F. Possumato, Esq john@Possumato.com

Call or Text 856 577 2763 Text AMS to 69696 for Digital Business Card

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