Introduction
In our digital age, reaching out to potential customers or joint venture partners is easier than ever. One method that has gained significant traction is cold texting.
Why is Cold Texting So Effective?
Cold texting can be incredibly effective for several reasons. Firstly, it leverages the direct and personal nature of text messaging.
Unlike emails that often end up in spam folders or are ignored, text messages are read almost immediately. Sometimes with 90%+ open rates. This instant access to a customer’s attention is a powerful tool for businesses looking to quickly communicate their offers or services.
Cold texting also cuts through the noise of other marketing channels. In a world where consumers are bombarded with advertisements on every platform, a text message can stand out as a more intimate form of communication.
This personal touch makes recipients more likely to engage with the message.
The simplicity and brevity of text messages can also be appealing. With a limited character count, businesses are forced to get straight to the point, which can be more effective in capturing and maintaining the recipient’s interest.
Now perhaps in your marketing efforts direct or through an affiliate you receive consumers phone numbers and decided you want to do outreach or follow up through text messaging. Perhaps you’ve worked with an agency who has sent a few texts on your behalf?
You might be thinking: “This is unreasonable. I should never get in trouble for a few text messages.
After all, the political texts I receive are annoying and it does not seem like those people get into trouble.”
Just because you received a person’s personal information with a phone number does not mean You or Your company has the right to text the individual.
You may be thinking it’s a text message what could be the harm?
What Does the Law Say?
Despite its effectiveness, cold texting comes with significant legal considerations. The Telephone Consumer Protection Act (TCPA) of 1991 is the primary legislation governing unsolicited text messages in the United States.
Under the TCPA, businesses are required to obtain prior express consent from individuals before sending them marketing text messages. This law aims to protect consumers from unwanted solicitations and ensures their right to privacy.
The TCPA has undergone several updates to address the evolving landscape of communication technologies.
Recent rulings have further tightened the restrictions on cold texting, making it clear that businesses must adhere strictly to consent requirements.
Violations of the TCPA can result in hefty fines, with penalties ranging from $500 to $1,500 per unsolicited message, depending on the nature of the violation.
One of the most notable rulings came in December 2023, when the Federal Communications Commission (FCC) issued new guidelines that clarified and expanded on existing TCPA rules.
This ruling emphasized the need for businesses to obtain explicit written consent before sending marketing texts. The FCC stressed that verbal consent, often used in informal settings, would no longer suffice. This change aims to close loopholes that some businesses exploited to bypass the stricter requirements (Goodwin) (Orrick – Homepage).
In addition to clarifying consent requirements, the December 2023 ruling also addressed the issue of automated text messaging systems. The FCC defined more clearly what constitutes an “automatic telephone dialing system” (ATDS).
Under the new guidelines, any system that has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator, and to dial such numbers, falls under the ATDS category.
This broader definition means that many modern texting platforms used by businesses could be subject to stricter regulations and oversight (The National Law Review) (Husch Blackwell: Trusted Legal Leaders).
Another significant update from December 2023 involves the opt-out mechanisms that businesses must provide. The ruling mandates that businesses include clear, easy-to-use opt-out options in every marketing text message they send.
This change aims to enhance consumer control over the messages they receive and reduce the burden on consumers who wish to stop receiving unsolicited texts (Locke Lord).
These updates reflect a growing trend towards stricter enforcement of consumer protection laws in the digital age. The FCC and other regulatory bodies are increasingly focused on ensuring that businesses respect consumer privacy and adhere to legal standards. As a result, businesses must stay informed about these changes and adjust their marketing practices accordingly to avoid costly penalties and legal troubles (The National Law Review) (Locke Lord).
So What? What’s the Probability of Getting Into Trouble?
While the legal framework around cold texting is stringent, the actual probability of getting into trouble is increasing each month.
Many businesses continue to use cold texting as a marketing strategy without facing immediate legal repercussions. However, this does not mean they are in the clear.
Regulatory bodies and watchdog organizations are becoming more vigilant in monitoring and addressing TCPA violations.
But here’s the catch.
The Rising Tide of TCPA Lawsuits
In recent years, there has been a noticeable increase in TCPA lawsuits. This rise can be attributed to several factors, including heightened consumer awareness and a growing number of legal firms specializing in TCPA litigation.
People are becoming more knowledgeable about their rights under the TCPA and are more willing to take legal action when those rights are violated.
One of the primary reasons for the surge in TCPA lawsuits is the relative ease with which individuals can file claims.
The TCPA is designed to be consumer-friendly, meaning it doesn’t require extensive legal expertise to initiate a lawsuit. Many TCPA violations are straightforward to identify and document. For instance, consumers can easily log the time and content of unsolicited text messages, making it simple to demonstrate a breach of the law.
The TCPA allows for statutory damages of $500 per unsolicited message, which can increase to $1,500 if the violation is found to be willful. However, some consumers are making a living out filing TCPA complaints. They align with a TCPA Lawyer who will not demand $500 or $1,500 but often start out at $10,000 or greater. Even without proof, the law firm will insist on payment or they will go to court and easily get a judgement to subpoena every call and every text you made over the past 3 years from you, any 3rd party marketing company or affiliate you are working with to find more violations racking up not just the tens of thousand in legal bills but potential creating a class action and costing you hundreds of thousands of dollars on top.
That’s the catch.
You are Accountable for Anyone you Hire to Send out Unsolicited Text Messages.
Another critical aspect to consider is that businesses are responsible for the actions of any third parties they hire to send out cold texts.
This includes marketing agencies, freelancers, or any other external service providers. The TCPA makes it clear that liability does not end with the direct sender of the message; it extends to the entity that commissioned the communication.
This means that even if a business does not directly send out cold texts, they can still be held accountable if their hired agents violate TCPA regulations.
This vicarious liability underscores the importance of due diligence when selecting and managing third-party service providers.
Businesses must ensure that their partners comply with all relevant laws and maintain clear and transparent consent practices.
Failing to do so can result in the same legal and financial repercussions as if the business had sent the unsolicited texts themselves.
Conclusion
Cold texting may seem like a tempting marketing strategy due to its directness and potential for high engagement.
But it’s not worth the risk.
Here at Live Calls Network Our technology goes through thousands of data points to make sure the address and phone number we are given on a consent form matches the information they give us in real time. If we use our call center we will ping the phone to check PID and know we are speaking to the owner of the phone and that phone is located where consumer should be calling from. We check every phone number against a blacklist, and several National Data Bases and so much more to insure we have verified permission to call or text any consumer, the consumer is who they say they are and that permission extends to you as long as you also follow all TCPA, State, Federal rules and laws.
This way you can be sure that booked calls you receive from our agency are free of any legal skeletons in the closet.
Legal Services Done Right
https://www.livecallsnetwork.com/