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CalAttorney2
CalAttorney2, Attorney
Category: Legal
Satisfied Customers: 10237
Experience:  Civil litigation attorney for individuals and businesses.
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I have a question regarding whether I can send a text

Customer Question

I have a question regarding whether I can send a text message to a previous customer requesting a review if they have not previously opted in for a text.
JA: What state are you in? It matters because laws vary by location.
Customer: Florida
JA: Has anything been filed or reported?
Customer: no
JA: Anything else you want the lawyer to know before I connect you?
Customer: I haven't started yet
Submitted: 1 month ago.
Category: Legal
Expert:  Loren replied 1 month ago.

Good afternoon. I am Loren, a licensed attorney, and I look forward to assisting you.

Is this regarding Canadian or Florida law?

Customer: replied 1 month ago.
Florida law
Customer: replied 1 month ago.
Are you licensed in Florida or in the US regarding this matter>
Expert:  Loren replied 1 month ago.

Thank you for the additional information. I am a Florida licensed attorney.

Expert:  Loren replied 1 month ago.

What sort of review are you seeking?

Can you contact them by email?

Customer: replied 1 month ago.
Are you an expert in the area of text message marketing law?
Customer: replied 1 month ago.
Are you still there?
Expert:  Loren replied 1 month ago.

That is an awfully narrow specialty. I think you would be hard pressed for an expertise that narrowly defined.

I can discuss the general issues if you wish, or I can opt out.

Customer: replied 1 month ago.
The penalties are $1,200 per improperly sent text so that may be narrow but it is important to be right if you are sending thousands of texts.
Customer: replied 1 month ago.
Thanks though....I'll keep trying
Expert:  Loren replied 1 month ago.

I will opt out.

Do not respond or it will put the question back in my queue.

Expert:  CalAttorney2 replied 1 month ago.

Dear Customer,

Thank you for using our forum. My name is***** am another expert on the forum.

SMS (texting) rules that were updated/enacted in 2013 require you to get positive affirmative consent for all "marketing" messaging. Exempt from this would be "transactional" messaging (for example texting to a current customer necessary to complete a transaction they have already entered into).

However - most prudent businesses will utilize an affirmative opt in for ALL SMS messaging regardless as to whether it is marketing or transaction for 2 reasons: (1) customers are potentially incurring an additional cost for each message and (2) as you noted, the risk of being wrong regarding classification can lead to a significant penalty.

The type of texting (requests for reviews) is most typically going to be seen as a marketing email as opposed to a transactional one (you are trying to get business interest from old accounts and/or further advertise your business - this has nothing to do with actually completing a transaction for your customer (you are not advising them of the status of an order, or additional information related to their purchase to assist them, etc.).

Sending these texts without a positive affirmation or "opt in" is going to open you up to potential liability (the $1,200.00/ text penalty you noted above).

This is Federal law, not State and is regulated by the FCC.

Customer: replied 1 month ago.
Thank you ...we have thousands of phone numbers from prior customers, many without e-mails. Is there any way
to contact them to update their data, and while doing that ask permission for future contact by sms or e-mail ....to send them discount coupons...etc.?
Customer: replied 1 month ago.
We had not previously requested opt in at that time
Expert:  CalAttorney2 replied 1 month ago.

The easiest way to do this would be to send out an email to your current/past customers advising them of your new communications policies, provide customers with a specific option to opt in to SMS messaging. The SMS message "opt in" must be separate, and it must provide a mechanism for them to agree to it (it can be as simple as them clicking a radio link (check the box on their email)).

You could include in that email a link to allow them to rate their past service with you - but this is more of a tech question regarding how to format your emails rather than a legal one.

Customer: replied 1 month ago.
How much do I owe you at this point...I also have a follow up question. Thanks
Expert:  CalAttorney2 replied 1 month ago.

You will need to contact our Customer Service regarding your account - unfortunately as experts we do not have access to individual customer's accounts through our portal. I am sorry for the inconvenience.

Customer Service can be reached here: http://ww2.justanswer.com/help

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