A recent ruling involving one of the industry’s largest dealer groups serves as a reminder that with new technology comes new legal challenges.

The name of the group isn’t important, but the class-action lawsuit filed against it in July 2011 is. The case involved a text-message marketing campaign the group and its marketing agency launched in April 2011. At the heart of the case, according to the court filings, was the group’s failure to honor consumer opt-out requests.

Plaintiffs’ attorneys said more than 60,000 people received text messages in the course of the ill-fated campaign. The defendants claimed it was a technical error, but they ultimately agreed to a $2.5 million settlement.

Text marketing can be a great way to reach consumers. But promotional text messages are subject to a number of federal and state restrictions that can be extremely confusing. In fact, they can be much more difficult to deal with than rules governing telemarketing or e-mail marketing. That’s because many consumers are charged for text messages and the government feels they should be afforded additional protection against unwanted solicitations.

In many cases, the consumer must give express permission to a dealership before they can be sent a single promotional text message. That rule stands even if the store has an existing relationship with the customer. Let’s review a couple of other things you need to know before launching a text marketing campaign:

1. Avoid the "Do Not Call" List:

Until recently, businesses were allowed to send text messages to consumers on the DNC list — so long as they could prove there was an established business relationship. That changed six months ago, when the Federal Communications Commission (FCC) amended the Telephone Consumer Protection Act (TCPA) and removed that exception.

2. No Automated Dialers:

Businesses are not allowed to send any text messages whatsoever to a cell phone using an automated dialing system — mechanical or computerized — unless they’ve received prior express written consent. And that goes for service reminders as well.

3. CAN-SPAM Rules Do Apply:

A text message may also be considered an e-mail if it is sent to an e-mail address that contains a domain name after the "@." An example would be [email protected] If that is the case, the text must comply with all of the standard CAN-SPAM requirements (e.g., text must contain your physical mailing address, cost-free opt-out mechanism, etc.).

4. E-mailing Wireless Devices:

The CAN-SPAM Act also prohibits sending commercial e-mail messages to wireless devices without express prior authorization. And having an established business relationship with the recipient is not enough.

Confusing, right? Well, here are some suggestions to help protect your store against legal challenges:

• Consult the national DNC list and your company’s lists before sending a text message.

• Determine whether your delivery meets the CAN-SPAM Act’s "e-mail" definition.

• Put a process in place to ensure that all opt-out requests are honored quickly and permanently.

• Develop an employee policy regarding text messaging and educate your staff on proper procedures.

• Appoint an in-house compliance coordinator to monitor text messaging by employees and vendors.

• Consider instituting a policy of always obtaining a recipient’s express written authorization before sending a text message.

• If you use an outside vendor to administer your text marketing campaigns, never assume the vendor knows all the rules and regulations. Always consult knowledgeable legal counsel first.

Just remember, it’s certainly not difficult to find a lawyer who’s ready, willing and able to sue a car dealer.

Jim Radogna is president of San Diego-based Dealer Compliance Consultants Inc. He can be reached at [email protected]

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