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Millions of dollars of TCPA Fines are closer than they appear

There is a great scene in Jurassic Park where the T-Rex is chasing one of the Jeeps through the park. The driver looks in his mirror and we see the words “objects in your mirror are closer than they appear.” This engraving in the mirror glass is actually part of a variety of mandatory Federal Motor Vehicles Safety Standards. We think nothing of the message and focus our attention on image reflecting back at us. The requirements of the Telephone Consumer Protection Act (TCPA) should be similarly engraved in the mindset of promotion marketers. And you shouldn’t look past them. Here’s why.

Papa John’s pizza just paid $16 million dollars to settle a class action lawsuit stemming from improper use of mobile phone numbers to sell pizza. It is a graphic example of how not paying attention to the TCPA can cost you big. In this case it was because mobile telephone numbers collected through a variety of promotional activities was mishandled. Here is what happened.

The Mobile Marketer Newsletter reported that a marketing company hired by Papa John’s incorrectly advised them that it was within the law to send text messages to their customers because they had a previous business relationship. Operating on this advice Papa John provided a compiled list of phone numbers which also included lists of numbers from their franchisees. The marketing company then used the numbers to sell Papa John’s products. Several violations of the TCPA took place. For the purpose of this article the mistake we are pointing out is assuming that the pre-existing relationship or isolated engagement, A.K.A. responding to a promotional offer eliminated the need to get consent for mobile, including SMS solicitations. So although the vendor provided incorrect counsel it was Papa John’s who was left to defend itself. They lost when they could not produce any evidence that consumers receiving the messages had provided consent. Documentation, among the most innocent of mistakes is often the weakest link when data is collected and then repurposed for something other than the original intent. It often occurs when a marketing manager executes a program but then switches responsibilities or leaves the company.

As bad as this can be for marketers, a new version of the TCPA is coming in October which promises even more substantial fines for marketers who knowingly violate the act

The lesson here is defining both the short and long term uses of the data you collect. Work with a resource that will help anticipate and recommend the right course to follow. By partnering with an agency with expertise in strategic planning, including the collection and management of customer data you’ll escape the fate that others have met

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