Marketing Through Calls and Texts

Recently, you got a pre-recorded call to your cell phone from Amarillo, Texas trying to sell you an extended service agreement for your vehicle. You also received a text message advising you of a better credit card deal. Those rang a bell for you. Why can’t you do the same to advertise your vehicles or service using pre-recorded calls and text messages?

There is a very simple reason — it is against the law unless you have appropriate permission from the message recipient.  The federal Telephone Consumer Protection Act, which is backed up by heavy civil penalties for each instance of wrongful conduct, has complicated rules about such contacts.

If it is illegal, why are you getting those calls and texts? Most likely, they are coming from out of country bad guys using cloned phone numbers. They are simply out to get your money, and law enforcement cannot find those folks even when they try. You are different, however. You have a legitimate, brick and mortar dealership. People know where to find you if you violate the law. You do not want to violate the TCPA.

This chart describes what a dealer may do under the rules.

  Cell Landline
Auto-Dialed calls Express Consent for informational calls
Only with express written consent for advertising or telemarketing calls
Pre-Recorded Message Express Consent for informational calls
Only with express written consent for advertising or telemarketing calls
No calls for Telemarketing or containing advertisements; purely informational calls appear to be allowed
Live Telemarketing Calls YES provided calls are not auto-dialed YES*
Live Information Calls YES, provided calls are not auto-dialed YES
Information Text Exchange Only with prior express consent  
Marketing text message Only with prior express written consent.  

                                *Businesses must still check and comply with the Do-Not-Call Rule

As the chart shows, auto-dialed calls and calls involving pre-recorded messages to cell phones are forbidden unless the recipient has provided appropriate permission. Those calls may be allowed under certain circumstances to landlines. However, today there are many people who no longer have landlines and have only cell phones. So you generally cannot know whether you are making a call to a cell phone or a landline. Therefore these types of calls should not be made.

Text messages can be deemed artificially generated, similar to auto-dialed calls. So text messages should be done with care. A marketing text message can be sent only with prior express written consent.  An informational text message requires only prior express consent (the law does not require that it be written). To avoid any misunderstanding of whether consent was given or not, a dealer should always have written consent before sending a text message.

The consent should identify the business permitted the make contact, the telephone number for which the consent is given, that the consumers agrees to receive calls and texts that use an automatic dialing or texting system or that are pre-recorded. The consent should also add language that says it is given “without requiring directly or indirectly, that the agreement be executed as a condition of purchasing goods or services”.

The consent can appear in documents such as buyers’ orders or service tickets.