Appointment Reminders and Regulatory Compliance: FCC and TCPA

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Apptoto, cannot provide legal advice, however we feel it’s important to inform our users of the regulations surrounding automated appointment reminders.  This information is not to be used as a substitute for legal counsel.

TLDR: If you can show that your client gave you his or her wireless number, then you effectively have express consent to send non-healthcare appointment reminders (via automated text or voice call).

We are often asked if it’s necessary to obtain express written consent before sending automated voice call (or text) appointment reminders.  Ultimately, you (as a user of Apptoto or any automated appointment reminder service) are responsible for staying in compliance of the Telephone Consumer Protection Act (TCPA).  So it’s important you understand what level of consent you must obtain before sending out automated messages.

Sending appointment reminders is an efficient way to reduce no-shows.  No-shows can hurt (and sometimes kill) your business. So we believe you have every right to try and protect your business.  If a client books an appointment with you, you should have the right to confirm with them that they are still coming before the appointment takes place.   On the flip side, it’s important that SMS/Texting remains a clutter free communication channel.

Luckily the Federal Communications Commission (FCC) has sought to establish regulations that cover when and what is ok to send in automated messages.  The main bodies of work involved are the original Telephone Consumer Protection Act of 1991 (TCPA), and a more recent 2015 TCPA Declaratory Ruling and Order. The actual PDF of that ruling can be obtained here: PDF Version.

What follows is our interpretation as it relates to consent for non-healthcare appointment reminders.

What is the TCPA?

The Telephone Consumer Protection Act of 1991 restricts the use of telemarketing (i.e. telephone solicitations).  It was passed in response to a growth in telemarketing calls at the time. It includes many stipulations for telemarketers including the National Do Not Call Registry and rules for what type of messages can be sent without first gaining explicit consent from the receiver.  It also allows for persons to sue violators.

A summary of the rules can be found here:  TCPA Rules Summary PDF.

One thing of note is that originally, the TCPA did not consider calls sent to persons that have an “established business relationship” with your business as “telephone solicitations”.  Which meant that if someone bought something from you previously, or had an appointment with you, you could send a call to them without express written consent. The “established business relationship” exemption was removed by the FCC in a “Report and Order” on February 15th, 2012.

So, just because you have an “established business relationship” with someone no longer means you can send telephone (or text, see below) solicitations.  Furthermore, you must obtain express written consent before sending tele-marketing and solicitations.

Are calls and texts considered the same?

Yes, one of the things the 2015 TCPA ruling solidified was that text messages (i.e. SMS) are covered in the same way as voice calls.  This is plainly spelled out in paragraph 107 of the TCPA Declaratory Ruling.

Are automated reminders considered tele-marketing/solicitations?

Yes and no.  Officially, they are considered “Informational” calls and messages.  However paragraph 123 of the 2015 TCPA ruling states “the TCPA broadly prohibits calls made using ‘any automatic telephone dialing system’ to ‘any telephone number assigned to a . . . cellular telephone service’ without limiting that restriction to telemarketing calls.”.

So while they are not considered marketing messages, they do fall under the same regulations as marketing messages, and you must obtain consent.

So, how do you obtain consent for automated reminders?

If you are a healthcare provider, you really should obtain express written consent to send automated reminders to your patients.

However, if you are a non-healthcare provider, then our interpretation is that you must obtain consent in a way that you can prove (i.e. demonstrate) it was given.

Interestingly enough, the 2015 TCPA ruling (paragraph 52)  makes it clear that for non-telemarketing calls/texts, you can prove consent was given if you can show the client gave his/her phone number.  Meaning, it’s not enough to simply show that a client’s phone number is in your address book, since you may have purchased a list of phone numbers somewhere for the purposes of cold-calling.   But,if you can show the client gave you his phone number when an appointment was booked, then you can demonstrate you have consent to sent non-telemarketing calls/texts.

Specifically, paragraph 52 of the 2015 TCPA ruling says “For non-telemarketing and non-advertising calls, express consent can be demonstrated by the called party giving prior express oral or written consent or, in the absence of instructions to the contrary, by giving his or her wireless number to the person initiating the autodialed or prerecorded call.

How do you obtain consent for follow-up messages after the appointment?

Follow-up messages immediately after an appointment can be considered non-telemarketing.

Follow-up messages sent more than a few days after an appointment would most likely be considered telemarketing messages.  In that case, written consent should be obtained.

Simple steps to remain compliant

Step 1) Always allow clients to opt-out through any means

To begin with, it’s important to always allow clients to opt-out of automated messages through any reasonable way, at any time.

Apptoto’s reminders will automatically interpret any response of “9”, UNSUBSCRIBE, or “STOP” as an opt-out and will automatically add those users to your “Stoplist”.

If you directly receive a request to opt-out of automated messages, you can always update your opt-out lists in Apptoto. Read more here.

Step 2) Remove all marketing and advertising from your messages

By default, Apptoto’s appointment reminder templates do not contain any marketing or advertising content.  If you’ve customized the templates yourself, then make sure they do not include any text that might be considered a “solicitation”.  For example, do not upsell the client on a different type of service or appointment.

It is also recommended that you limit the number of messages sent.  By default, Apptoto will only send one 1 SMS and 1 voice call the day before; however you can easily increase the number, and oftentimes sending an additional SMS message 1 hour before the appointment can be very effective.  Recently there have been rulings surrounding the “scope of consent”. Sending too many messages might be considered outside the scope of consent. In a recent ruling, 6 text messages within one month was considered too many.

Step 3) Document your appointment taking procedures

We recommend documenting how you accept appointments over the phone, email, or web.  Make it clear that part of the process is to ask for the client’s phone number and add that phone number to the event subject or body in your calendar to show you obtained it in regards to that appointment.

Step 4) Obtain written consent at the time of the appointment

Once your client has arrived at his/her appointment, include the following language somewhere in your intake form.  Doing so will allow you to remain in compliance should you decide to reach out to your clients after their appointment for both informational and marketing related reasons.

Suggested Language for Client Intake Forms

I, ______________________(client or guardian name), approve receiving phone calls,voice messages or email messages from _______________(provider name) that may be from a human being or auto-dialer, related to appointment reminders, service information and billing matters on my mobile phone: ________________ and / or my landline phone: _______________.

I also    do   / do not   (circle one) approve the use of text messaging to my mobile phone listed above.  I realize that I can opt-out of texting at any time by replying STOP to any text I receive.

THIS INFORMATION IS NOT TO BE USED AS A SUBSTITUTE FOR LEGAL COUNSEL. It is your responsibility to abide by any federal and state laws applicable to your use of Apptoto (Go-Cort, Inc.) services. Please refer to the Terms of Service and EULA for more information.