The increasing movement to cell phones and away from landline phones presents significant marketing opportunities. It also presents a host of legal challenges.
Per the National Center for Health Statistics, as of June 2020, less than 1% of U.S. households with people ages 25-44 relied on a landline with no cell phone. At the same time, more than 80% of adults ages 25-34 reported having no landline. As a result, any marketing plan to reach customers (or potential customers) via phone must include cell phones.
Phone calls to cell phones can also be an effective marketing tool, with over 80% of U.S. adults in every age group surveyed by Pew Research Center in July 2020 admitting that they answered calls to their cell phone or listened to voicemails even from unknown phone numbers.
At the same time, we have all experienced the frustration of repeated unwanted phone calls, which, if frequent enough, may actually turn customers off to your business, product or service. As a result, there are a significant number of laws and regulations that govern calls to consumers, and especially to cell phones. With that in mind, below are some important steps to take when contacting consumers via phone calls or text messages.
1. Check the National Do Not Call Registry, available at telemarketing.donotcall.gov. The Telephone Consumer Protection Act prohibits businesses from making telephone solicitations to phone numbers (landline or cell phone) listed on this registry. Violations may be enforced through private lawsuits. An exception allows calls to numbers on the Registry when there is an established business relationship between the caller and the recipient, but the exact nature of this exception is evolving, and businesses should proceed cautiously with any call made on this basis. While Ohio has adopted the National Do Not Call Registry as its own, several other states maintain independent registries that should also be consulted before residents of those states are contacted via call or text.
2. Unless you can verify that a phone number is not a cell phone number, assume that it is. Cell phones are generally subject to stricter regulations than are landlines, so do not assume that a phone number is a landline. Even if the number is provided or listed as a “home” or “business” number, it is still safer to assume it is a cell phone and proceed accordingly.
3. Do not use an automatic telephone dialing system to call or text a cell phone or leave a pre-recorded message without consent to do so. Call recipients can file lawsuits seeking monetary damages to enforce this prohibition. Based on recent U.S. Supreme Court authority, an automatic telephone dialing system subject to this restriction is one that uses random or sequential number generation (i.e. (111) 111-1111 and (222) 222-2222) rather than known phone numbers associated with specific recipients. While the exact impact of this recent decision is still being litigated in courts across the country, ensuring that any system used to place calls does not do so will significantly enhance your ability to defend against any such lawsuit.
Consent occurs when an individually knowingly provides his or her cell phone number. Once given, consent extends to all communications until it is revoked. Courts have generally found businesses have a right to contact their customers at known phone numbers, particularly in relation to the customer’s account or dealings with the business.
4. Pay attention to the time of day, particularly if you are calling or texting people who do not reside locally. The Telephone Consumer Protection Act prohibits telephone solicitation calls before 8 a.m. and after 9 p.m. in the consumer’s local time zone. As a result, you should know the time zone in which the recipient is located or, if you do not, should only call at times when it will not be before 8 a.m. or after 9 p.m. for the consumer regardless of time zone.
5. Do not call too often. Though the law varies in different states and different courts as to what this means within any given period of time (i.e. day, week, month or year), the frequency of calls could potentially subject a business to a lawsuit from a consumer for violation of privacy or a related claim.
This is a primer of important considerations, and not an exhaustive list of all restrictions that may apply to calls or text messages in specific circumstances. You should consult with an attorney familiar with these regulations and related litigation before initiating any marketing program involving phone calls or text messages.
This article should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.
Barnes & Thornburg LLP is a national, Midwestern-based business law firm that strives for a more entrepreneurial and cost-effective approach both to client service and its own business. Read more Metropreneurial Legal Insights.
