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Using text messages in station promotions and contests?  Beware of the TCPA’s obligations

A recent $8.5 million settlement by a large broadcaster for alleged violations of the Telephone Consumer Protection Act (TCPA) should serve as a wake-up call for stations using text messages in station promotions and contests.

The Act prohibits companies from using telemarketing efforts involving calls or text messages unless the recipient has explicitly consented to receiving them.

In this case, the broadcaster involved reportedly sent reply texts containing ads unrelated to a contest to those who had entered the contest with a text message.

Those who violate the TCPA face federal penalties AND potential civil causes of action.

The FCC has developed rules to implement the TCPA, hence the potential federal penalties for broadcast outlets.

The civil claims can be staggering in cost – violations of the TCPA can result in civil liability of $500 to $1,500 per call or text.

Attorney John Bercu with TAB Associate member law firm Wilkinson Barker Knauer warns stations that a number of law firms around the country have been active in filing class action suits against businesses to collect those potentially very high per-call damages.

The TCPA restricts businesses and organizations from making calls and texts to consumers’ residential and wireless phones without having first received very specific permission from the recipient.

Bercu warns stations that sending texts to viewers or listeners who are part of a station’s loyal listener or loyal viewer clubs, for example, can lead to liability if the proper releases are not obtained.

Also, collecting text addresses from contest participants and adding them to station databases can similarly be problematic.

Obviously, the TCPA can pose many issues for broadcasters who use text messages to contact their listeners.

Given the ambiguities in the new rules, carefully following them should reduce, but may not totally eliminate, any risk of legal action.

TAB recommends broadcasters work with their legal counsel to develop strategies to remain in compliance with these rules to minimize litigation risks and to avoid potentially big liability.

Bercu has prepared a list identifying some of the pitfalls and issues that arise under the law and the FCC’s rules that have been adopted to implement the TCPA.

Stations should review this list to better understand what key TCPA provisions could affect them and adjust station practices accordingly.

Questions? Contact Michael Schneider or call (512) 322-9944.

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