Pub. 1 Issue 4

11 WINTER 2014 sent. 3 This includes purely informational calls (e.g., calls to notify a customer that their vehicle is ready for pickup in the Service department.) b. After October 16th telemarketing prerecorded or auto- dialed calls made to cell phones, now require prior express written consent. 3. Text Messages: a. As NADA has previously informed dealers, the FCC considers SMS or “text” messages to be telephone calls. Therefore, as text messages are generally sent to cell phones, after the new rules went into effect on Oct. 16th, any au- tomated telemarketing text message requires prior express written consent. b. Depending on the nature of method used (and a court’s interpretation of that method) all text messages may require prior express written consent. There are several issues with respect to text messaging that make their treatment unclear under current law 4 and dealers must consult their legal counsel and work with their vendors to determine the best approach. Until more clarity is achieved, the conservative approach is to ensure that no text messages are sent by the dealer or on behalf of the dealer by the dealer’s service providers without ensuring (and being able to prove) prior express written consent by the text recipient. Again, dealers should consult their legal counsel for more on these changes, and should work closely with any third party ven- dors to ensure that any calls and text messages made or sent by the dealer or on the dealer’s behalf comply with the new require- ments.  1 There are other requirements as well, but this is the biggest change for most dealers. 2 An electronic signature pursuant to the E-sign act is considered sufficient. 3 There is some lack of clarity whether a customer who simply provides a cell phone number to the dealer would have provided the necessary prior express consent to receive a call on that cell phone. The case law is mixed. Dealers should consult with their legal counsel regarding how best to ensure compliance with current rules with respect to cell phones as well as these recent changes. 4 For example, is a “manually dialed” text message from a smart phone sent using an “automated telephone dialing system” (and thus does it require prior express written consent)? Reach your target audience a ordably. advertise get results CHRISSY EDWARDS Advertising Sales 801.676.9722 or 855.747.4003 chrissy@thenewslinkgroup.com