FCC July 10th 2015 Car Dealership FAQs
When it comes to communicating with your clients, Federal Communications Commission is a place where you as a car dealership should find all the necessary information about the regulations either via radio, wire, satellite and cable in all 50 states, DC and US territories. This independent government agency is governed by the US Congress, which is the primary authority for regulations and technological innovation. In a recent conversation with FCC, we have asked them important questions in relation to what is a DO and what is a DON’T when it comes to mobile texting.
FCC FAQs & Answers
Can a service advisor take his personal phone and text a client with questions, approvals or notifications that the car is done or other questions like above (assuming no written approval or opt in from the service customer)? And is there a $1500 fine per text if a service advisor uses their personal phone?
The FCC’s new definition of Automatic Telephone Dialing System (“ATDS”) is sufficiently broad as to include in its definition, smartphones. However, at this time, the FCC does not appear to consider liability for typical uses of smartphones. Further, the FCC has found that there is no evidence that companies with which consumers do business find typical smartphone calls unwanted.
The FCC will monitor complaints and litigation regarding “atypical” uses of smartphones. The FCC has not explained what it considers an “atypical” use of a smartphone. In sum, it is likely that a service advisor who takes his personal cell phone and texts a client will not be liable under the TCPA.
If there is a violation, the statutory penalty is $500 per violation (per call). If a plaintiff can show the violation was knowing or willful, a court can increase the penalty up to $1,500. Given the FCC’s lack of clarity and the expansive scope of its recent ruling, we doubt any violation arising from a call from a smartphone would exceed $500 per call.
Can texting software be used by a service advisor to text a one to one personal message to a client to help them get questions answered so that the car can be serviced without written consent on the repair order as described in #2 above.
Texting software will most likely be considered an autodialer under the FCC’s recent ruling broadly interpreting the meaning of Automatic Telephone Dialing System (“ATDS”). Thus, even though the service advisor creates a personalized message to a client, the text message would likely be considered by the FCC as a “call” using an ATDS under the TCPA. Thus, consent will be required.
However, since the repair messages here do not appear to be marketing messages, written consent based on the repair order will not be required. The provision of a cell phone number will most likely be sufficient consent for service advisors to call customers relating to the repair order.
We recommend, however, obtaining written consent to avoid future claims by customers alleging they did not provide consent.
Can a sales person text a customer with vehicle information, pictures or video after he/she told the sales person to follow up with them and provided a cell number to the sales person? Can this text communication happen through a cloud-based software on a sales person’s personal phone?
The text messages will most likely be considered telemarketing messages for which prior express written consent is required under the TCPA. Therefore, the provision of a cell phone number to a sales person will not be sufficient consent. If the text is sent through the cloud based software, it will likely be considered by the FCC as an autodialed text message, despite the fact that it was on a sales person’s personal phone.
The FCC’s recent ruling clarified that various pieces of equipment and software can be combined to form an autodialer, and very broadly defined what constitutes an autodialer.
Please confirm or correct the following — you cannot text a customer to ask if it is okay to text them.
Correct. If you’re using the online texting software (ATDS), you cannot text a customer to ask if it is okay to text them without prior express consent.