4 things you should know about SMS before you start texting fans

Well, welcome to True Dialogue and Aaron Fox webinar, sharing more about sports, texting, and the TCPA, four things you should know. My name is Cory Fine. I am our vice president of sales here at True Dialogue. I reside in New York, big diehard New York Giants football fan, and have spent a lot of time talking with and communicating with all different organizations. Um, was specifically within sports, helping them leverage SMS for both ticket sales and marketing related. And we are honored to be joined by Adam Bowser. And I’d love to give Adam the opportunity to introduce himself and share more about his experience specifically with sports initially. Thanks Corey. Um, Adam Bowser here. I live outside of DC. Um, I’m a partner at Aaron Fox shift and I’m a class action, uh, defense specialist. with a particular focus in TCPA and TCPA compliance. And I’m originally from Pensacola, Kentucky. So I’m a Steelers fan as well as a University of Michigan guy. So we’re having one good year on that end. There you go. And in terms of our agenda today, we’re excited to highlight four key areas, sports marketing, texting, and the TCPA. TCP stands for Telephone Consumer Protection Act, rules for different types of messages you could send, examples of marketing, informational and emergency messages, and then compliance best practices. There is a Q &A section at the bottom of the Zoom. Please feel free to put questions in there. At the end, we will open up the floor for questions. And in terms of takeaways, we really would like everyone to better understand How can you communicate SMS and really two facets today? One as it relates to ticket sales and service and the other as it relates to marketing related messaging. So as you go through our webinar, I think those would be your key takeaways and let’s dive in. First and foremost, a little bit about TrueDialogue. We relaunched a version 2.0 of TrueDialogue in May, 2021. Our organization has over 500 customers today. Headquartered out of Austin, Texas, while we do have offices where I am today in New York City and out of Detroit, Michigan, our platform has direct carrier connections. We’re able to save organizations up to 50 % on their SMS spend in this regard, in this realm compared to competition. We take pride in offering White Glove 100 % United States based customer service. We believe that The technology is important, but so is having a team that helps support that behind what we deliver to our customers. So full hands-on customer support. And we offer our platform in a couple of different ways, APIs, user interface, and native integrations. Those native integrations live within two main ecosystems from a CRM perspective, both Microsoft Dynamics and Salesforce. We also offer for a marketing related messaging, native integrations into Marketo, Eloqua and HubSpot to communicate both sales and service through CRM and then through marketing automation tools for your marketing related messaging. And our platform is designed to provide a single pane of glass, right? So organizations could log into their existing tools and their existing infrastructure today. and be able to manage all communication and communicate via SMS while all of that is then logged for reporting and tracking purposes inside your native tool that you’re using. There are two different types of mediums that we provide when it relates to SMS. Those folks that did submit a mobile number when joining the webinar, you did get a text message reminder coming off that 70626 number. That’s what we call a short code. That’s meant for our bulk, high volume marketing related messaging. A great example of leveraging a short code is through the use of a keyword during a game. And when you have fans in their seats, you could put up on your Jumbotron, text the word tickets to your short code number. And when everyone is sitting at their seat, they text in the word tickets. You automate a response against that. Thank you for contacting the XYZ team. Your information will be provided to our ticket sales and service team who will be reaching out to you Monday after today’s football game. And then that communication that happens from the sales perspective would come off of what’s called a long code or a traditional 10 digit phone number used for one-to-one communication. So these two different types of mediums, both long codes and short codes have very specific use cases and are used in different areas to communicate, right? Think short code, high volume. bulk marketing related messaging, think long code, your one-to-one communication from a ticket sales and service perspective. And our platform provides all of this, keywords, scheduling messages, contact creation, and managing your subscriptions and Optin as well, right? Which we’ll talk a lot about how do you control Optin? How do you gather Optin? All of that is then housed back within our platform to create Either your CRM or your marketing automation tool to be a system of record for you to manage opt-in and opt-out. And what folks tell us they find value, really four key value drivers when partnering with TrueDialog is first and foremost, the cost reduction. They’re able to leverage SMS at almost 50 % less expensive than competition. And that’s because of the unique way we created our platform to have direct carrier relationships. They see that then driving customer and fan engagement. 98 % of texts have an open rate. You’re able to communicate at scale, high-volume, bulk-related messaging, while also then creating that one-to-one customer service and sales experience through one-to-one communication. Because of our native integrations and partnerships with existing tools, we’re able to spin customers up. in a rapid rate and this goes into our customer service model and the way in which we create our integrations to be 100 % native to the tool that you’re using, decrease IT’s investment, do use development resources from our customers and provide these out of the box integrations to add more value, more reporting and more analytics. And then that allows for deeper analytics on your customers. What are they engaging with? Are they more interested in Jersey sales reminders? Are they more interested in in-game? discounts at some of our stands when it comes to buying apparel during the game and how do we optimize our communication in all areas. So TrueDialog provides that instance and that experience for our customers in all different aspects. So with that, a little bit about us, I’m going to share it and turn it over to Adam to start talking a little bit more about some impacts SMS has on the industry. Okay, thanks, Corey. So I’m sure a lot of people have heard some horror stories or just, know, what is the TCPA? They understand it could be a big litigation risk, but the world has changed in the last 18 months or so to make it a lot safer channel. And, you know, one of my cheesy lines is that, you know, 15 minutes can save you $15 million because TCPA compliance is not particularly hard. It’s really You know, the core compliance concern is really consent driven. And once you have consent, you’re pretty much often running. And then there are some additional things to kind of, you know, build the multi-layer defense from, you know, litigation risk. But at end of the day, as Corey mentioned, it’s such an effective tool to get 98 % open rate and just get to your consumers in a very targeted fashion that, you know, a lot of my clients, it’s certainly worth looking at and getting through, once you understand that TCPA is not a huge stumbling block, it’s just something that you can understand and move beyond pretty quickly. So. Let me just stick into the script here. I do want to mention that, you know, true dialogue and I’ve been representing true dialogue, you know, for at least eight years now, I believe. And one of the benefits is that, you know, we’ll get into the legal developments now, you know, recently, but true dialogue was actually found not to be an autodialer. So that has some important implications in terms of, you know, safety, comfort level of using the platform. But again, as I mentioned, You know, it’s not just the law, there’s, you know, consumer expectations and the experience. So, you know, generally speaking, you just want to have consent and you don’t have to worry about, you know, what type of equipment you’re using. So, you know, we’ll talk about that as we go on in the webinar here. So, if you could turn to the next slide, Corey. So, you know, just for background purposes, what is the TCPA? The TCPA, as Corey mentioned, stands for the Telephone Consumer Protection Act. This was a 1991 law where, you know, really was addressing annoying telemarketing calls at the dinner hour. And really like the robo calls of the 1980s, where you would essentially be able to plug in, you know, basically an auto dialer as it’s defined in the TCPA, which would essentially be something that has the capacity to randomly or sequentially generate numbers. And effectively, telemarketers would just be carpet bombing entire phone blocks. And that was kind of the safety concern or one of the impetuses behind passing the law was that you would essentially, when these telemarketers would do that, they would seize entire phone blocks. So the entire police emergency line, hospital lines, they would get sequentially called and it would block all their phones. So that was the real technology that they were going after in 1991. And so that was again the key point of the TCPA and where 90 % plus of litigation is with respect to what I call subsection B. And what that means is that, so there’s two sections of the TCPA with the private right of action, meaning someone, a plaintiff can sue you, really the plaintiff’s attorneys. And so subsection B is really for the ATDS autodialer calls, also prerecorded voice. what that like, you know, basically circumscribed practice is to initiate an auto-dialed call without prior express consent. So if you’re not using an auto-dialer, subsection B does not apply. The other big section of the TCPA, which is, you don’t see much litigation that’s picking up because of the favorable Supreme Court ruling we’ll get to, but that’s the DNC rules. And the DNC rules only apply to telemarketing. And so those are the separate do not call rules. And so what that means in practice is generally you can’t just start telemarketing strangers unless you are scrubbing against the national do not call list. But even if you have an established business relationship, which would, you you actually don’t even need written consent or anything special. You just have to have an internal do not call policy. If you want to follow up with a fan. And so I guess the key point for DNC rules is you actually have more defenses for DNC. It’s an affirmative defense that you have policies and procedures in place not to continue calling someone after a do not call request. But generally speaking, it’s very fact specific and it doesn’t lend itself well to class action exposure. So once you’re over the auto-dialer hump, it’s just DNC is having a one paragraph. know compliance policy in your drawer if anyone asked for it and you’re honoring do not call requests, which a platform like true dialogue makes incredibly easy because the opt outs. When someone text stop to a message it’s automatically recorded and that person is you know basically opted out of your list automatically so it’s it’s pretty foolproof so that was the kind of the you know history of the TCPA until you know about. 12 years later, where it was expanded, the FCC, the Federal Communications Commission ruled that text messages were calls. So for all intents and purposes, texts are treated the same as calls, but they’re still safer because there’s really no prerecorded aspect to it. So everything else equal, texting has less compliance obligations. But where this became a cottage industry, picking up in, I would say about, it was kind of a small, it was always meant to be a small claims court type of suit where you would get, the plaintiff is able to, again, for violations of the auto dialer or prerecorded section or the DNC section, a plaintiff could institute a lawsuit and get $500 typically as kind of the baseline statutory damages. And then there’s the possibility of $1,500, which is generally hard to get for knowing or willful violations if you’re essentially, you don’t care that you’re not complying with the law and you’re just spending everyone anyway. But if you’re here, you’re obviously interested in compliance. So it’s really the $500 is generally the baseline fine. And so the issue with everything in the TCPA, both subsection B, the autodialer rules and the DNC rules, everything could be addressed with consent. And so just as a prophylactic measure and just good business practice, what I recommend is that you just get the ultimate level or the highest level of consent, which in the TCPA is called prior express written consent. And it’s not particularly difficult. There’s two magic sentences. that you’re agreeing to receive autodialed and or pre-recorded promotional messages and that consent is not a condition of purchase. There’s additional steps you can take in terms of disclosures to get some more poison pills in there. But that’s basically the baseline compliance is just getting that upfront. And that would cover you for basically everything. But if you’re not getting that or you don’t have that and there’s a different database, that you want a message for informational purposes or hybrid or emergency messages. If you have safety stuff that’s going on in the stadium, that has less consent. And typically if you have the number from the fan voluntarily, then you don’t need anything more. You don’t need written consent. It’s really just the telemarketing messages that require that upfront disclosure with the two magic sentences. So Corey, can you turn to the next slide, please? Okay, so. Again, just to recap, there’s essentially in the TCPA world, there are two main categories of messages and there’s nothing really, the statutes or the regulation itself is getting a little more complicated with specific carve-outs that we don’t really need to worry about here. But generally speaking, there’s telemarketing and informational. And those since 2012, 2012 order effective 2013 those required different consent levels again assuming it’s auto dial. But we’re just going to assume just for the sake of let’s not get into like discussion about the technology that we’re we’re dealing with auto dilers but again true dialogue true dialogues platform was ruled not to be an auto dialer any event but assuming that it’s an auto dialed text message. You know what you’re really looking at is. Pretty upfront disclosure. They’re easy to obtain. I’m sure a lot of people have seen them where, you know, when you’re releasing your number, again, there’s just going to be a clear and conspicuous disclosure that says, again, you know, pick a, you know, you agreed to receive, you know, promotional text messages, you know, through automated technology from the Cowboys at the number provided. You understand that consent is not a condition of purchase. That is prior express written consent. That is the standard. And so it’s pretty easy to obtain. So again, the basic assumption is that, unless someone opts into these messages explicitly, they don’t want to receive them. So that’s why you get the upfront disclosure on a website, call to action displays. There’s a lot of different ways you can easily obtain this information. So you can have posters in stadium that says text. You know, again, just to pick a team, text dealers to, you know, true dialogue short code. And then that person is opted in to the Steelers, you know, know, kind of opted in database. And that’s really all that’s required as long as you have those two magic sentences on the poster or the web form or, you know, really any physical, you know, info work or forms that someone would sign. at any point. Next slide, Corey. So informational messages. there’s, you know, I think a lot of people would think informational is just like something that’s just not sales. And that’s ultimately what it comes down to is that everything that wouldn’t be telemarketing is either informational or there’s a subcategory of informational, which is emergency, which is just completely outside the statute. So if. We’ll get to that later, but if there’s a, you know, a hurricane or a tornado coming to the stadium and people are told to shelter in place, no one wants to prevent that, those types of messages from happening. But for informational, generally, you just kind of have to think about what is not telemarketing is like, I guess the easiest way to think about it, because telemarketing is really the only defined term in the TCPA. And so if you’re promoting a product, good or service, that’s telemarketing. and everything else would be informational. So here’s an example, just telling you how a high day with the storms getting to the game today will be hectic. Please allow ample time and know that gates 1A to C have also been opened to help facilitate. So you do not. So the key point here is that if you’re just using data that a consumer has voluntarily provided to you, through like a ticket registration and you don’t have, you you haven’t been using the prior express written consent language, you still have all the consent that would be required to text someone an informational message because all it requires is someone completing a form and voluntarily releasing their telephone number to you. And that’s, that’s all it requires. And so the other thing I just you know, if this is relevant to folks on the call or the webinar, telemarketing can be, you know, not everything is telemarketing just because you’re a business. And so if, you know, a good example would be late payments or, you know, ticket sales that have already agreed to basically to buy. And so the key point here is that as long as you’re not trying to get them to, you know, buy something new, if it’s something they’ve already expressed an interest in purchasing. they’ve essentially, here are your tickets or your season tickets are past due. If they’ve already agreed to purchase it, you’re not trying to promote any product, good or service purchase. all of these kind of trends, these would be considered transactional and would be considered informational. So just because you may not already have the enhanced consent for telemarketing, you can still, you know, have touch points via text, even if again, assuming it’s autodialed, which it’s not, these are still safe messages to send. So Corey, next slide, please. And again, for just, you know, probably not going to be, hopefully not going to be used in any significant way. But if you do need to send folks like critical messages about, you know, that impact health or safety, there is no, you should have no fear about doing that as long as it’s obviously actually an emergency message, which, you generally again, is just anything that impacts health or safety. If something’s going to happen at the stadium, shelter in place. Amber alerts, you name it, those are going to be just perfectly fine. And the basic assumption is that you’re not just going to be getting some third party list and texting those folks anyway. So you probably already have the consent to send basic informational messages. So it’s really not going to be a concern in practice. But we just wanted to flag that emergency messages are just outside the statute completely based on the plain statutory language. Next slide, Corey. And so just the other thing to consider is that this has been an issue for some folks, not recently, certainly when it started getting to be a hot topic or really the TCPA class action litigation was becoming a cottage industry about 10 years ago. It’s certainly dying down now after the Facebook rolling last year. But essentially people would try to sneak in you know, kind of what would be considered an informational message, but then try to, you know, get in some kind of telemarketing hook in a single message. And so the basic rule is that, you know, don’t get too cute with your messages because essentially you need to round up to the stricter message. So if you have a, you know, example here is that your season ticket payment is due shortly, please submit a payment or contact a ticketing representative to avoid late fees. If you stopped there, that would be a purely informational message that we just discussed in the last slide. But if you added seat upgrades are now available for purchase, that makes the whole message to be a telemarketing message for which you would need prior express written consent, again, assuming it’s auto-dialed. So just wanted to flag that for the folks on the webinar. Next slide. So staying QCPA compliant. Obviously, it’s again, it’s not particularly hard. It’s really a consent driven law where as long as you have the consents upfront, plaintiff’s attorneys will generally stay away from you. There’s not going to be a lot of litigation when you’re relying on, here’s my webpage, I had this disclosure, he signed up. It’s really an open and shut case and no one’s really bringing that type of case anymore. It’s really the unsolicited telemarketing cases that are, you know, the primary driver of the kind of the class action suits that are being filed. you know, informational messages. If someone has provided you, you know, their telephone number voluntarily and they, and you’re really sending them an informational message, a transactional message. or even an emergency message, there’s not a well of cases being filed because of those messages. So just remember, don’t try to get cute or try to text an old database that gave you their number without the opt-in language if you’re gonna try to use hybrid messages. So again, it’s not complicated. Get consent. The risk is really down now just because of, I know I’ve been mentioning it, I’ll just close on this in terms of the law. So the Supreme, for those that are not tracking this litigation too closely. So the Supreme Court last year ruled in an appeal from a nine circuit ruling. The nine circuit was just a hellscape for TCPA litigation for several years because They basically rewrote the statute after an FCC order was vacated by the DC circuit. And they essentially said anything that can automatically dial from a stored list without more was an auto dialer. But that’s not what the statute says. The statute defines an auto dialer as essentially any equipment that has the capacity to randomly or sequentially generate telephone numbers and to dial them. And so what the Supreme Court did last year was saying, no, no, no, like it’s not an ambiguous statute to store, you know, basically random or sequential number, number generator modifies both store and produce. So all the numbers have to be coming from the platform itself. The key point here is that if you are relying on a platform that can only import numbers from a third party database, a curated list of, you know, you’re getting from your website. your ticket sales, however you’re integrated through your CRM, you can import those into TrueDialogue, but you’re not generating them from TrueDialogue’s platform. So that’s why it’s not considered an autodialer under the TCPA. And so the bottom line is that this is a kind of the golden age of texting because you don’t have to worry about pre-recorded voice restrictions. and it should not be considered an autodialer. So again, I’m giving you all these rules for consent under the assumption that it’s just safer not to have to worry about whether it’s an autodialer or not. But you can always have that in your back pocket. If something bad happens, if there’s a reassigned number or what have you that’s just like a random lightning strike occurrence, you can still say, I’m still not an autodialer, even if I didn’t have your consent. you know, the subsection B claim is gone. And by the way, I have this policy. So if you actually told me you didn’t want to be called, I would have put you on the do not call list and that would have solved the problem. that would those two things would address basically any TSP litigation. So the other thing I just want to flag for folks is that You know, it’s not hard to get consent. We’ve been talking about that. It’s just the two magic sentences and you’re off and running. But to be even safer, you can have terms and conditions, and even the carriers want to see that, where you have kind of a template policy, something I draft all the time for folks, and it’s not a heavy lift. You just have those two sentences and then say any type of carrier disclosures that they want to see. And then you say terms apply. And then in those terms, you have a hyperlink that has a class action waiver and arbitration provision. And that’s a further poison pill to, you know, really just nip any type of litigation exposure in the bud. So get consent, use a platform that’s really not an auto-dialer, like TrueDialogue, and then have terms and conditions with class action waivers. And you’re generally going to be, you know, as safe as you can be. And it’s just, I don’t see… in my practice, any of my clients that do all that stuff and get sued. It’s just not something that happens, especially post Facebook of last year. So that’s, I think, all of my presentation on the legal side of it. So thank you all for listening. And Corey, I’ll turn it back to you so we can start the Q &A. Awesome, Adam. Thank you so much for all that great information and everyone on the phone. appreciate your attention and hopefully again, you took some key takeaways away today. We did want to give an example of what a keyword to a short code looks like. So if you do have your cell phone by you, feel free to send a text message. The phone number to send the text message is 70626. Once again, the phone number 70626. And in the body of your text, all you need to write is TCPA. And you could see exactly how a keyword, keyword being TCPA to a short code, short code 70626 works. So when you do send that message, you’ll get sent a response back. Additionally, if you do have any questions, my email is my first name, Cory at TrueDialogue.com or Feel free to text me or call me on my cell 516-996-7763.