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Good afternoon. I am Loren, a licensed attorney, and I look forward to assisting you.
Is this regarding Canadian or Florida law?
Thank you for the additional information. I am a Florida licensed attorney.
What sort of review are you seeking?
Can you contact them by email?
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.
I will opt out.
Do not respond or it will put the question back in my queue.
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.
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.
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