Higher Education Texting: Regulations & Best Practices

welcome everyone thank you for joining us for today’s webinar my name is john wright and i’m ceo of true dialogue
true dialogue is a leading cloud communications platform as a service or cpas
specifically geared for higher education today we are presenting texting in higher education regulations
and best practices presented by adam bowser partner at aaron fox adam’s been recognized as a washington
dc super lawyers rising star in communications law for the past six years he remains undefeated in court
having recently won several notable victories for clients brought into class action litigation
particularly the telephone consumer protection act or tcpa as part of his deep experience in
consumer protection law adam also regularly advises his clients across industries on privacy compliance and risk
mitigation strategies a couple housekeeping items prior to getting started if you have any questions
during the presentation please take them to the question box inside of the zoom control panel and i’ll bring them up at the end of the
presentation for our q a now without further ado we’ll turn things over to adam thank you john
i just want to briefly go over today’s agenda and so you know the topics we’re going
to cover today are student texting and the tcpa rules for
different types of messages and specifically we’ll get into examples of marketing informational and emergency
messages and just some compliance and best practices that i i think really goes above and beyond
what you’re required to do under the tcpa and which will really eliminate you know
really any type of of litigation risk if you comply with those uh best practices so
in texting in higher education i get this asked a lot can i legally text students and
and the answer is absolutely yes i think a lot of people are scared off
by the headlines and litigation but you know this is saying i have is that
you know 15 minutes can save you 15 million dollars just because compliance
is is very easy you know you if you start with uh what does the tcpa you know prohibit and it’s really auto
dialed communications sent without the recipients prior express consent and so
you know we’ll get into in this presentation we’ll just assume that we’re dealing with auto dialers but
uh you know platforms like true dialogue specifically have been ruled not to be an auto dialer but we’re going
to just for for purposes of today’s presentation just assume that consent is required
which is just a best practice that once you have consent you don’t really need to worry about
the type of technology that you’re using so to begin with the actual law um that we’re going to be
dealing with today the tcpa which is short for the telephone consumer protection act this
was a law that was passed in 1991 it governs how
consumers can be contacted by telephone fax and and text and one of the key
provisions of of the law is the restrictions around what are called in the statute automatic
telephone dialing system or in auto dialer for for short
um it was you know originally designed to limit those nuisance telephone calls
around uh you know the dinner table but it has expanded to include a lot more you know since it was
first adopted in 91 and and one of the bigger rulings under the statute was that in
2003 the fcc encompassed or brought in text messaging into the the tcpa fold
the the big issue with the the telephone consumer protection act is that it’s what’s called a private attorney general
statute and what that means is that a private litigant can if they’re you know receive
communications in in alleged violation of the statute can institute a claim in court to
enforce their rights the the issue with the tcpa is that it can result in somewhat mind-boggling damages
because it’s just a mathematical statute that you have five hundred dollars per message um
received in violation or if there’s a knowing violation you can
treble that meaning that you get triple damages if if someone willfully violated the statute so
you know 10 000 auto dialed calls which can be you know it’s sent to the click of a button can result in you know 15 million dollars in
damages fairly quickly in terms of the private rate of action and the statutory damages
figures the congress when it passed the tcpa it thought that
this type of 500 to 1500 per message would be a good incentive to get
individual plaintiffs to file suit in small claims court the problem with that was the unintended
consequence of class action plaintiff’s attorneys latching on to the statute and that’s
where again some of these mind-boggling damages figures can can come there was a complaint filed for
1.2 trillion dollars in damages just because again it’s mathematical application of number of
messages sent in violation of the statute times 500 or 1500
in terms of the latest updates in the tcpa i think we have hopefully passed the high water
mark of tcpa litigation because there has been since 2015 a lot of
across the country reasonable orders coming out from both the the circuit court level
and uh just a couple weeks ago the fcc issued a declaratory ruling where they adopted
a fairly great interpretation of what an auto dialer is and it aligns with what the statute
says it is which means it has to have the capacity to randomly or sequentially
generate telephone numbers and to dial those numbers and so that’s why you have had
platforms like true dialogues ruled not to be an auto dialer because there is simply no
number generation capacity um involved in or permitted in the platform if you want
to use true dialogues platform for instance you have to bring your own numbers or the prospective
student has to join your alert program by texting a keyword there’s there’s no way to generate
telephone numbers through the platform and so we’ve had a lot of of great rulings recently which are i
think are going to undercut the probability of a future litigation but again right now we’re focused on
just assuming that you’re going to be using an auto dialer and what type of of consent would be
necessary um so getting into the the type of consent it’s going to depend on the type of
message you’re sending under the tcpa there are a few types that are recognized that require differing levels of consent
so starting with the the strictest form of consent you’re going to have marketing messages next you’re going to
have informational messages then the third type of message that’s
recognized in the statute is emergency and emergency is going to be actually totally outside the statute because the
tcpa was never designed to restrict access to emerge emergency communications
and then the the fourth type of message which is really just a hybrid message
is where you’re including two different messages or types of message in the same overall
message that is you know largely you have to round up to the to the more restrictive
type of consent so getting into rules for marketing messages what what is a marketing message under
the statute and the statute says that telemarketing is essentially that you’re encouraging someone to
to purchase a product good or service the the rules for that the fcc issued an order in 2012 where
they came up with a new enhanced level of consent and what it’s called is prior express
written consent so if you want to use an auto dialer and send someone telemarketing messages
you need a specific type of consent and the the the consent
needs to be clear and conspicuous you know the a good example would be a pop-up message
with an unchecked box which would allow the person to agree um that yes i’m i’m affirmatively
consenting to receive autodialed telemarketing messages from you and so in actuality it can be a
very simple message it really only needs two sentences it needs to
disclose to the consumer that there’s going to be an auto dialer and then they’re agreeing to receive
messages that are telemarketing or promotional in nature uh and then the the only other issue
that you need to address is to inform the consumer that they don’t have to consent
that consent is not a condition of any type of purchase with you so again i think that the basic
assumption for these types of messages you start from the premise is that people generally don’t
want to receive telemarketing messages unless they expressly opt in and so that’s you know
really the regime we’re in for telemarketing it’s an opt-in regime with a few
specific disclosures required and so given that however there there’s
a lot of flexibility in how you can obtain that consent there there’s no magic language other than what i just
covered the two sentences there’s some flexibility there to fit your specific
use case and in terms of the actual medium there’s even more flexibility so you
could do it on a website you could do it on a physical form you could allow someone to text in a keyword in
response to a poster at your university you could do it in
email responses so as long as you’re doing it electronically or even
physically on paper forms as long as you are retaining the the opt-in consent
that’s really all you need to do is you have the two sentences and you retain the records because in in
tcpa litigation consent is an affirmative defense meaning that
you as the potential sender of the message have to prove that the the plaintiff actually gave you
their consent um it’s not hard to get but you just have to be keeping the records to to establish that
you you have the consent necessary now rules for informational messages are
a lot easier to put it bluntly uh so there’s actually no specific rule for
consent for informational auto dialed messages in 1992 when the fcc adopted the the
first rules for any type of autodialed message uh they didn’t actually distinguish between
telemarketing or informational at that time they treated all messages the same what the fcc ruled was that
the consumer’s voluntary release of their telephone number
to the sender constituted prior express consent and it could be oral it could be written
so you know really any type of you know student application form
any type of inquiry where the student releases their their telephone number to you would
constitute prior express consent to receive any type of
auto-dialed informational message and this is really around the premise that
people want to receive informational messages so it could be you know really any type
of of message that isn’t telemarketing has to be either informational or emergency messages so just student
alerts payment reminders you know specifically tuition alerts that your your tuition is past
due any any type of message that governs the existing relationship is
by and large going to be considered informational unless you’re trying to sell something new to the student it’s going to be
informational informational is a really easy standard to satisfy and all you really need to do
if there’s ever a dispute is just have a record that this this student disclosed his telephone
number to me and that’s really that would resolve the dispute now the final category
of messages is is going to be emergency slash urgent messages that you need to
get out that are going to affect or potentially affect the the safety or or health of the
intended recipient any type of any message that would arguably help or reduce the likelihood of someone
getting injured or worse would very likely qualify as an emergency message and as stated at the top of this
presentation such messages are totally outside the scope of the tcpa
we do not want to restrict messages that are you know trying to convey emergency
information um so you can think about an amber alert or you know a school shooting alert any
type of message where you need to get it out fast as a practical matter you probably
already have their consent to send this message if if you if you have their telephone number in your database
but even if you don’t or there’s you know some for some reason a reassigned number in the pool you do
not have to worry about any type of consent to get out an emergency message
so just to give you an example of of a hybrid message if one part of the message
instructs someone that their tuition for the current semester is past due that would be considered
informational but at the same time if you also wanted to encourage them to commit to the next semester which
they haven’t done yet then that could be considered telemarketing as well
so if it’s if all of that is sent in one message it would be considered a hybrid message
and therefore you would want to round up to the strictest level of consent required and that would be
the telemarketing prior express written consent so again not complicated uh it’s just that
you have to round up to the the stricter level of consent
so so now just to put it all together to stay compliant with the tcpa again we’re assuming that
we’re using an auto dialer that’s not always a safe assumption and i think the way the law is going you’re you’re
going to have a better defense that like platforms like true dialogue there’s no capacity
to randomly or sequentially dial numbers and therefore it’s not an auto dialer but
again assuming that you need consent it’s not hard to get so it’s really about just establishing
from the outset a strict onboarding process if you want to send students or prospective
students messages that could be considered telemarketing in nature if you’re trying to get them to enroll
at your university assume that you will need some enhanced
consent and so you just need to have those disclosures up front to the prospective student that they’re
agreeing to receive auto-dialed telemarketing messages but they don’t have to
if they if they don’t want to so that’s really all there is to capturing consent to be on the on the
safe side in in the tcpa from my experience in the litigation trenches
there’s there’s not a lot of litigation around certainly informational messages um or
you know much less transactional messages about you know tuition reminders payment reminders you know
course selection deadlines no one is suing over those types of messages by and large 95 of litigation
surrounds marketing messages and overwhelmingly unsolicited marketing
messages there are very few issues issues around purely informational
and emergency messages so in terms of best practices get consent
that way you do not have to worry about whether you’re using an auto dialer or not i i
would say that having that argument in your back pocket is a good one to have
if there’s for any reason that there’s some sort of reassigned number or there’s a dispute about who gave consent
not using an auto dialer is always a good defense to have now you also want to make sure that
you have a clear and easy way for students to opt out if they so choose the tcpa doesn’t require any type of
specific disclosures to students to say this is how you should or you can opt out but if you drive students to
you know just text stop to stop that’s going to be the most reasonable way for them to opt
out and courts would say well if you didn’t text stop and you tried some other less frequently
used method for opting out that that wasn’t reasonable so the bottom line is that if if you
you know tell people how to opt out and and they follow instructions and platforms like dialogue
programmatically recognize opt out requests you’re going to cover yourself on the back end if someone does
want to opt out of receiving future autodialed communications and as we stated previously consent is an
affirmative defense and so what that means again is that you as the sender would need to establish that studentx
provided me his telephone number or student x provided his telephone number in the face of
these disclosures and therefore i have all of the consent necessary to send him informational or
telemarketing text messages as as the case may be now that’s the the baseline if you do that
you’re going to be fully compliant with the tcpa and you should be off to the races texting
students and prospective students now to take it to another level in terms of protecting
yourself from tcpa litigation what you can do is and it’s very simple it’s just you
would have some additional terms and conditions that incorporate class action waivers and arbitration
provisions and add some good choice of law provisions if your location allows where if
the person is agreeing to join your mobile alert program you make it subject to these you know
very short terms and conditions and by agreeing to join the alert program subject to those terms they are
essentially limiting their options to initiate class action litigation
and and if there’s any dispute they would have to arbitrate those terms would even if you’re for
some reason non-compliant those would save you from the type of you know really problematic
class action litigation so that can eliminate uh really any type of
litigation risk if if you adopt terms and conditions that are are going to be favorable to you
okay now we are entering the q a portion of our webinar and we’ve had several
questions come in so thank you adam for a great presentation on all things sms
and text for higher education first question that’s showing up here is what are you
referencing when you say dnc policy in the final slide no the the dnc policy refers to a do not
call policy and so it’s it’s just and it could be part of a privacy policy it could be part of
terms of service that i that i just mentioned but it essentially would govern how you
as a university or organization monitor and record do not call requests so again it can be
very simple it could be a paragraph long but there is another section of the tcpa
that is more general it doesn’t it’s not related to auto dialing specifically but it
concerns telemarketing in general and the way it is written it says that
before you initiate any telemarketing calls you should have a dnc policy in place
and be available on demand to anyone that asks for it so again that’s why it’s just another good
way to comply with that separate provision by having a terms of service that just spells out
if you don’t want to get text from us just text stop uh easy enough so that that’s uh
you know a quick and easy way of addressing that separate provision okay next question is can we segment
students to send them only relevant information inside of true dialogue and the answer to that is absolutely any
of the attributes that exist inside that you’ve collected on the students can be used to create
different student segments or prospective student segments so for instance if you’ve got
students that are interested in certain degrees and you want to send out relevant
information on that degree to those students you can segment them out and create them
in a separate list and message them specific information on that degree we can also segment on
different things like birthday or desired start date these are just a few things that our current
customer base of over 300 universities use to create very specific messaging out to
their student base how are schools using integration
between true dialogue and their crm or sis systems that’s a
great question and it really varies again by customer many of our customers have
created very basic integration points uh between their sis systems or crm systems
uh in in our platform for instance on sis systems many are using very old legacy systems
and the integration is simply to transfer student or prospective student data from
their internal systems to our platform and then they use our platform for ongoing messaging
other institutions have gone well beyond that and completely integrated our systems to where data transfers in
real time and transferring not only student information like the student phone
number and any of the attributes on the student that they want to use for personalization
and segmentation but they also want to take all the messages coming in and out of
our system to that particular student and reapply them to their internal systems the neat thing about true dialogue is is
that you can buy it off as much as you want to and in often cases we’ve got existing
integration points in with some of the most more common crm and sis systems
how does a advisor or employee know when a student is texting in a question
if they’re not logged into the true dialogue system well true dialogue has spent a lot of
time thinking about this and since we developed the system really along with one of the leading
online universities this was something that we hit and addressed early on in our development
the way that we notify our users is really based off of if they are logged in or if they’re not logged in
and we kind of even go beyond that is that they’re logged in and not on a tab with the true dialogue screen
let’s take the first one as an example as to where they’ve logged into true dialogue and they’re communicating back and forth
to the student and then they go to another screen to start working on another task
because that student has responded and then while they’re on that other screen the student responds and
we want to notify the advisor that that student has responded there will be a a sound an audio
component of it notifying the end user that the student has responded as well as the tab
of which true dialog is open will flash and there’ll be a message on that tab denoting that
is an incoming message waiting to be answered now if they’re not logged into true dialogue we will do a couple of things
as well first and foremost there will be a notification sent via email notifying you that
student has responded and with this message we initially just were responding letting you know that there was an
incoming message waiting we further enhanced that over the years notifying you not only that the student
responded but what the content of that message is this allows the advisor or
employee to read the message and understand if it’s if the student is waiting on a
response as opposed to them simply responding okay or great that doesn’t require the advisor to go
in and answer anything further okay what can we do besides collecting
consent to protect ourselves so consent is obviously the the biggest
cure-all the the second aspect of a tcpa claim would be whether it’s autodialed so do
your homework find a platform that is not an auto dialer or
or engage in you know there there’s bulk messaging and there’s also peer-to-peer
peer-to-peer is particularly after the fcc’s most recent ruling is going to be a very safe alternative
to bulk messaging so do your homework on who your platform provider is and
whether they’re an auto dialer or not now the the third precaution that i
would i would take in terms of creating you know multiple defenses is again having a terms of service where
the the student or the prospective student is agreeing to class action waivers and arbitration provisions
great thanks um we have another question for adam when you say written in express written
consent does that actually mean we have to have a written consent collected
also can we collect consent over a phone call so written is a bit of a misnomer you
the the better way of looking at it or interpreting it that phrase is it has to be or it could be electronic so again you
could you can have paper uh consent but the the way that the law has been
implemented as long as you are capturing consent in a way that complies with state
contract law and nearly every state has adopted what’s called the
uniform electronic uh commerce act which essentially boils down to any type of process
electronic or otherwise that you know basically allows someone to show that they consent to something
uh would be considered an electronic signature so again the the the various ways you can
obtain consent or are are many you can do it through a website you can do it through a click
box you can do it through recorded voice key press over the phone it just has to be
logically associated with someone agreeing to to the actual disclosure
so you have a lot of flexibility in how you obtain prior express written consent
okay and we have a follow-up question of that one and it’s how long do we need to keep the opt-in information once we’ve
stopped texting the student there’s no specific requirement for how long you have to keep consent
but the the standard statute of limitations for a tcpa claim would be four years so it’s
just good practice to keep consent or records of consent for four years
uh but just as an aside here it’s it’s not good practice to keep your old telephone records that
you don’t have to so that just uh makes it easier for the planet’s bar to you know tabulate damages if if it
comes to that so i would say keep consent for as long as four years after the
the opt out occurs um but otherwise you don’t need to keep records uh if you
don’t have to for some other reason so you know i would encourage folks to have a highly
manicured outbox next question is if a student opts out of a one type of
text communication for instance financial aid does that opt them out of all communications with the
university and the answer to that is it depends on what your preference is
uh many of our customers will maintain what we call different subscriptions
based off of the functional area of the university so financial aid might have its own
messaging stream the registrar might have its own messaging stream and subscription
uh recruiting might have its own messaging stream and advising might have its own messaging stream
and subscription uh we can set it up to where if the student reply stop they’re opted out of all
messaging streams going forward or that specific message stream in which the replying stop too
but great question we have another question here that asks we want to use
our main number for students to call in to and text from so it’s more convenient
and they can save it in their phone is this possible with true dialogue and the answer is yes
there is a process called hosted messaging which allows us to basically submit to your existing
phone provider a request to take over the texting component of the phone number all of your existing voice
communications and contracts still exist with your current voice provider
however we would take over the bandwidth that’s used for texting in the instance that it’s simply a
landline now we would text enable that number and take over the texting component of that phone number and that would be available to you that
process typically takes anywhere between 24 to 48 hours to enable
uh next question is is that can you send links to documents and images within a text
and the answer is absolutely very common uh however there are some
uh as the telecom industry has evolved uh so have the spammers of the world that
have gotten very attuned to sending out book messages and with links in them commit spam and fraud
primarily using long codes because the process with short codes takes a little bit longer to
get accepted by the carriers because of the increase and proliferation of spam
carriers have instituted content blocking software in many instances they all use
the same systems uh however they’re all able to institute different rules and if you’re
sending out larger volumes with links there’s a high likelihood using long codes there’s a high likelihood that
those links are going to get blocked also those content blocking systems also
really look for things like bitly and other common link shorteners
that spammers use what about scheduling can we schedule messages to be delivered
at certain times and the answer is yes and going back to adams we further have kind of hit this
as well as is that you know uh our system will also allow you to schedule certain messages
to be delivered and and by time zone as well so if you’re on the east coast and
predominantly all of your students or devices that you’re communicating with are located on the east coast you can specifically schedule campaigns
to go out during certain east coast hours if you’re in central it could be central
mountain eastern and again really allows you to control when the message goes out
okay when we send a masked message to students using a short code and they respond how
does that work do all staff have to respond from a single inbox and the answer is with our system no
that’s not required we have several ways that we can distribute incoming messages that are coming back as a response to an outbound
message off of a short code we can distribute them based off of an assigned id meaning that a student
has a counselor assigned to them already we can route all incoming messages from that student’s number to that
advisor’s inbox should you want to do that we also give you the ability that if there’s no assigned
employee or advisor or person at your university to that to that user we can distribute them
amongst a group of users inside of your uh university so that allows for even
distribution we call it a round-robin distribution format where incoming messages go amongst all of the
users or a certain subset of users that are online during that day to allow quick response
and allow not have one user get overloaded with responses okay next question is what information
can we see within your reporting and how can that help us improve our effort it’s a great question and
i think that our reports are pretty in-depth in that they can help you start to understand
patterns and understand and optimize your existing efforts not so much by understanding who’s
responding but further by understanding who’s not responding i think that one of the things for
instance tracking of links we could easily track who’s clicked on a particular link inside of a message
and allow you to create a list on that and then use that as a suppression list to send
out the same campaign again to all the users who haven’t clicked further our reporting will also allow
you to measure other metrics for instance one of our most popular that was developed again
with high rent in mind is what we call our activity monitoring reports that allows you to monitor all of the
accounts inside of your system and measure over a specified period of time which is controlled by you
how many individuals they’ve communicated with over a specified period of time how many messages they’ve received and
sent over that period of time and allow you to really kind of find out who your superstars are and
who you’re the people that are not using our systems effectively are and either provide further training or
improve uh the talent inside of your organization based off of their low usage rates what
are the pros and cons of using a shared short code do you offer dedicated short codes as well it’s a good question i think first
we want to basically understand you know what a shared short code is versus a dedicated short code
a short code is a five to six digit code that is used to send out primarily for
bulk messaging uh it’s also used very commonly for text in campaigns you know text in
to get more information from true dialogue university text in the word career or text in the word
degree and when they text in that keyword we record it and we can also assign a follow-up
campaign to go out anytime someone texts in that specific keyword and again that’s
these are primarily done on short codes why because it’s easier for an individual to remember a five to six
digit code versus a ten digit code and shared short codes have evolved over time in that
originally because there is a high cost involved with procuring a short code which is
our charges are 800 a month to get a dedicated short code it also takes a period of time to get
approved on a dedicated short code by the carriers companies like ours started providing
what are called shared short codes meaning that uh we have multiple customers using that same short
code one of the things that’s been coming up more and more is that the carriers
because of abuse of those short codes are starting to crack down on them and prohibit them as a matter of fact you can no longer apply for and receive
companies like ours can no longer apply for and receive shared short codes so they’re slowly dialing them back and
at some point probably in the next six to 12 months they’re going to eliminate shared short codes altogether so if you don’t have
dedicated short code and would like to use one i would recommend getting on those sooner rather than later again
the cost and timing on those is it’s eight hundred dollars a month the lease on short codes is three months
so you’re releasing them three mi there’s a minimum of a three month contract once you sign up and it takes anywhere between four and
twelve weeks to procure a dedicated short code that’s only yours and there would be no other universities
or other clients using that code what types of integrations do you offer
currently we have several integrations that are available out of the box we have offer on microsoft dynamics
integration out of the box and we offer a sales force integration out of the box
we have a marketo integration available out of the box and further we have a campus management
integration available out of the box we’re adding to our integrations currently and expect
the campus nexus from campus management integration to be done as well as a 5 9 integration which we’re
in the process of completing as we speak which allow you to use the unified messenger platform
inside of five nine and text out using our our texting api
what happens if a student texts us after hours is there a way to reply and automated with an automated response
and the answer is absolutely we offer what we call an out of office attendant that will monitor
your phone number and anytime the student checks in when that is enabled you can send back
and alert the student that your office hours are during this time and if you have an immediate need you can contact another number
that’s customizable by the university and actually by the end user if they want to create a specific message for
themselves on your website you refer to team-based messaging
what does that mean and how does it benefit my university the word team-based we use that term in
reference to lack of a better term group messaging so uh several again since we developed this with uh
one of the leading online universities the way that they structured things and wanted to be able to communicate with
students was as groups and inside of each group they’ve got different group members
assigned to each student they’ve got a representative from financial aid they’ve got representatives from
academic advising they’ve got representatives from the registrar and they wanted to be able to
log in and view all the communication stream to that student from one window even
though the student might be being text from different numbers be able to see the entire communication string that’s happened between the
university and that student regardless of what group has been communicating with the student
we call that a team based approach and it’s been very effective in that this allows you to go in and if
there are other conversations that are happening with that student allow you to seamlessly step in and get
a full picture of what the status of the student is based off of previous communications
uh further to that point we’ve added in some additional tools in that if you want to keep the communication
streams different we also allow you to do things like transfer communications so
if financial aid has been communicating with a student and they are ready to take the next step in their
enrollment process the financial aid group can actually transfer like a you would have phone
call to another group and or individual inside of the organization
well that’s all for questions uh at this point if you have additional questions or would like to get in touch with adam
after this you can reach out to me directly my email address is jw that’s jw
truedialogue.com and i’d be happy to put you in touch with adam or answer any of your questions related
to this webinar thank you again for your time have a wonderful day