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#2275279 - 09/08/22 05:55 PM TCPA and CAN SPAM
Tesla Offline
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Do you ever read something over and over again and get yourself so freaking confused it seems useless? Well, I have done that! I read a bunch of commentary on the TCPA and is sounded like it was expanded to cover basically any text message. Then I went back and read the law and it appears the same fundamental premise is still there that the communication must be made using an autodialer. (For these purposes, I am researching text messages). I am correct or did TCPA change?

For CAN-SPAM, the only time a text message would be covered is if an email is converted to text. Is that right?

I think my head is going to explode! crazy
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#2275287 - 09/08/22 06:28 PM Re: TCPA and CAN SPAM Tesla
rlcarey Offline
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From a marketing standpoint, without prior express written consent, I do not believe you can send any sort of a marketing message to a cellphone - whether voice or text.
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#2275289 - 09/08/22 06:37 PM Re: TCPA and CAN SPAM Tesla
Tesla Offline
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Hmm, for texts under the TCPA, I am relying on this language in part:

Calls Made by Financial Institutions 29 (47 C.F.R. § 64.1200(a)(9)(iii)) A person or entity will not be liable for making any telephone call [b]using an automatic telephone dialing system or an artificial or prerecorded voice [b]; to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call;

Is this section - where you think all marketing related texts are prohibited? provided that the call is not charged to the called person or counted against the called person’s plan limits on minutes or texts and all of the following conditions are met: Voice calls and text messages: • Must be sent only to the wireless telephone number provided by the customer of the financial institution; • Must state the name and contact information of the financial institution (for voice calls, these disclosures must be made at the beginning of the call); • Are strictly limited to those for the following purposes: transactions and events that suggest a risk of fraud or identity theft; possible breaches of the security of customers’ personal information; steps consumers can take to prevent or remedy harm caused by data security breaches; and actions needed to arrange for receipt of pending money transfers; • Must not include any telemarketing, cross marketing, solicitation, debt collection, or advertising content; and • Must be concise, generally one minute or less in length for voice calls (unless more time is needed to obtain customer responses or answer

I took that as a continuation of the first sentence that included the requirement to be autodialed...
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#2275294 - 09/08/22 06:56 PM Re: TCPA and CAN SPAM Tesla
rlcarey Offline
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rlcarey
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Have you read any of the FCC declaratory rulings or rules and regulations on the TCPA? If you are trying to interpret the TCPA without them, it would be like trying to interpret the Truth-in-Lending Act without Regulation Z.

The FCC ruled in 2003 that a text was the same as a call.

https://www.fcc.gov/document/rules-and-regulations-implementing-telephone-consumer-protection-act-22


We affirm that under the TCPA, it is unlawful to make any call using an automatic telephone dialing system or an artificial or prerecorded message to any wireless telephone number. Both the statute and our rules prohibit these calls, with limited exceptions, “to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other common carrier service, or any service for which the called party is charged.” This encompasses both voice calls and text calls to wireless numbers including, for example, short message service (SMS) calls, provided the call is made to a telephone number assigned to such service.
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#2275295 - 09/08/22 07:00 PM Re: TCPA and CAN SPAM Tesla
Tesla Offline
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LoL - that was what was getting me so confused -that the Facebook ruling, but even what you posted above prefaces coverage with automatic telephone dialing system or an artificial or prerecorded message. This is a system (which is where the confusion lies) that houses a consumer's wireless number and, at the request of a lender, sends a text message that may include transactional information or commercial (promotional) information. The system is not randomly selecting numbers. See why this is so confusing?? smile
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#2275303 - 09/08/22 07:17 PM Re: TCPA and CAN SPAM Tesla
rlcarey Offline
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Unless your lender is manually entering every phone number, you are using an autodailer.

https://docs.fcc.gov/public/attachments/DA-20-670A1.pdf

We clarify, however, that if a texting platform actually “requires a person to actively and affirmatively manually dial each recipient’s number and transmit each message one at a time” and lacks the capacity to transmit more than one message without a human manually dialing each recipient’s number, as suggested in the P2P Alliance Petition, then such platform would not be an “autodialer” that is subject to the TCPA.
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#2275305 - 09/08/22 07:20 PM Re: TCPA and CAN SPAM Tesla
Tesla Offline
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Wow -well, I guess I will be the first compliance person to advise a national company they are violating the TCPA. They have a whole room of lawyers who are going to fight me on this, I'm sure but I will use the information above which, again, I did not think this superceded the language in the Act. My bad!

As always Randy, you rock!
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#2277857 - 11/14/22 01:22 PM Re: TCPA and CAN SPAM Tesla
JROR PR Offline
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Posts: 2
Hi Randy,

We are having an interesting discussion about the possible application of the 4 rings and 15 seconds rule contained in 47 C.F.R. § 64.1200(a)(6) to all marketing calls regardless if those are made by manual dialing (human) or an ATDS (robocalls)

“No person or entity may disconnect an unanswered telemarketing call prior to at least 15 seconds or four (4) rings”.

One unit is debating that the requisite 47 C.F.R. § 64.1200(a)(6) applies to all telemarketing calls even if they are made by a person dialing for a live call.

On the other hand, there is the interpretation that the requisite only applies to automated dialing systems and pre-recorded messages as it is linked with previous requisites as part of a list that begins on 47 C.F.R. § 64.1200(a)(1) which is only categorized by 47 C.F.R. § 64.1200(a)(2) exclusions.

Prohibitions on Autodialed or Prerecorded Calls to Cell Phones and Other Sensitive Numbers(47 C.F.R. § 64.1200(a)(1)-(2))…
[…]
Other Restrictions on Calls
[…]
(6)No person or entity may disconnect an unanswered telemarketing call prior to at least 15 seconds or four (4) rings.

Please help us harmonize these two points of view so the business unit does not have to be imposed a requisite that is not required by the law.

Hope to hear back from you soon.

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#2277864 - 11/14/22 03:56 PM Re: TCPA and CAN SPAM Tesla
rlcarey Offline
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rlcarey
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Galveston, TX
Not sure why anyone thinks there is any ambiguity?

§ 64.1200 Delivery restrictions.

(a) No person or entity may:

(6) Disconnect an unanswered telemarketing call prior to at least 15 seconds or four (4) rings.
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#2277871 - 11/14/22 05:07 PM Re: TCPA and CAN SPAM Tesla
JROR PR Offline
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Joined: Nov 2022
Posts: 2
Thank you for your quick answer. But to your point, do you think that this section 64.1200(a)(6) of TCPA applies to live calls made by humans dialing as well as it surely applies to ATDS and robocalls as reflected in (a)(1), (a)(2) and others?

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#2277885 - 11/14/22 06:39 PM Re: TCPA and CAN SPAM Tesla
rainman Offline
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rainman
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Randy's quote provides the answer; nothing in that language shows a limitation to ATDS or any other form of telemarketing call.

There is no definition of telemarketing call in the regulation that would limit its application to particular means of initiating the call or conveying the message on the call (i.e. prerecorded, artificial voice, etc.).

All of the paragraphs you referred to include a specific reference to ATDS or artificial or prerecorded voice. Paragraph (6) does not. (Note that paragraph (3) applies to prerecorded and artificial voice calls but not to ATDS.)
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