09/29/2021
Don't Reply Until You Comply

$1500.  Per text message.  That is the federal penalty for noncompliance with the Telephone Consumer Protection Act (TCPA).  Have we got your attention?  Good.  No one ever said compliance was fun, but losing your business to bankruptcy when you have to pay these fines?  Definitely less fun.  So strap in: you’re about to get the skinny on what you need to know about compliance for giveaways and sweepstakes.

TCPA

Here at FanUp we think about compliance as a multiple layer cake.  When it’s done right, it’s amazing (and delicious).  When it’s not done right you wish you never had anything to do with it and find a place to politely dispose of it.

 

The first layer of this cake is TCPA.  The government loves to make examples using the $1500 fine we have mentioned above and since the law came out in 1991 and in particular since 2001 the road to Giveaways and Sweepstakes land has become littered with the carcasses of businesses that failed to heed this basic layer of compliance.

 

It gets worse.  We saw some time ago that a TCPA plaintiff wanted to pursue a defendant beyond the bankruptcy grave, not allowing the to discharge TCPA-incurred debts in bankruptcy.  While this isn’t a widespread practice, you’d have to be blind not to see which way the wind is blowing: people want their privacy and the government seems ready to protect it (well, at least in this case).

Common TCPA Mistakes

The two most common mistakes that happen (and which lead to litigation) involve:

 

Non-compliant language in an initial double opt-in interaction Did you know that codes for “HELP” and “STOP” have to be included in that first message you receive?  So many of us participate in text message giveaways with no idea of the complexity that underlies them.  That’s perhaps why people then turn around and run giveaways with the same attitude.

 

Use of a different short code without opt-in Just because you have opted in to a brand for one promotion doesn’t give them the right to then send you messages via a different short code.  An opt-in is required for each short code that you participate in.

General Sweepstakes and Giveaway Rules

The next layer of the cake to look at is general rules for sweepstakes and giveaway.  While the government is the biggest watchdog at TCPA level, there are lawyers trolling for noncompliance to initiate class action lawsuits.  Yes, lovely, isn’t it?

 

In some states even a customer-centric promotion has to include a chance for the general public to participate.  A financial services company we work with recently wanted to move their clients to an online version of their product.  But since this was a promotion that could deemed a “pay-to-play” since it targeted customers of a company, we had to include a way for people to get a paper entry.  This is a classic example of why our clients pay us: to make sure they don’t fall afoul of the law, which means sometimes dealing with nonsensical situations.

Alcohol

Another layer of the cake is proper gating for giveaways involving alcohol.  While the law is 21+ around the US, rules vary state to state, which means you need to be focused on whatever state your giveaway is happening in.

Additional Layers

If you’ve got the stomach for more layers, you can have them with email rules, in case you are capturing emails as part of your promotion.  

Also remember that all of this stops at our northern border.  If you want to do anything in Canada, they have different laws, different cell phone rules, different sweepstakes guidelines, etc.

We’re just trying to drive home that compliance is a serious business.  Changing your own oil instead of using a professional.  We get that (a few of us even do that).  But trying to run a giveaway or sweepstakes without being absolutely certain of compliance?  We don’t get that.  At all.

Don’t let your company be one more carcass on the road of noncompliance.

If you need help navigating these waters, drop us a line.  This is the stuff we do all day every day.