The below is information Gordon Johnson collected and thought other Franchisees may benefit from his research.
Unwanted Texts and the Telephone Consumer Protection Act
The TCPA and the FCC’s rules ban many text messages sent to a mobile phone using an autodialer. These texts are banned unless (1) you previously gave
consent to receive the message or (2) the message is sent for emergency
purposes. This ban applies even if you have not placed your mobile phone number
on the national Do-Not-Call list of numbers telemarketers must not call.
Giving Your Consent
Under the FCC’s rules, texts and commercial email messages may be sent to your
mobile phone if you previously agreed to receive them. For texts that are commercial, your consent must be in writing (for example, in an email or letter); for non-commercial, informational texts (such as such as those by or
on behalf of tax-exempt non-profit organizations, those for political purposes,
and other noncommercial purposes, such as school closings) your consent may be
For commercial email, your consent may be oral or written. Senders must tell
you the name of the entity that will be sending the messages and, if different,
the name of the entity advertising products or services. All commercial email
messages sent to you after you’ve given your authorization must allow you to
revoke your authorization, or “opt out” of receiving future messages. You must
be allowed to opt out the same way you “opted in,” including by dialing a short
code. Senders have 10 days to honor requests to opt out.
The national Do-Not-Call list protects home voice or personal wireless phone
numbers only. While you may be able to register a business number, your registration
will not make telephone solicitations to that number unlawful. Similarly,
registering either a home or business fax number will not make sending a fax
advertisement to that number unlawful, but the FCC has separate rules that
prohibit unsolicited fax advertisements under most circumstances. For more
information on the rules for fax advertisements, see our consumer guide, or
visit our website.
A telephone solicitation is a telephone call that acts as an advertisement. The
term does not include calls or messages placed with your express prior
permission, by or on behalf of a tax-exempt non-profit organization, or from a
person or organization with which you have an established business relationship
(EBR). An EBR exists if you have made an inquiry, application, purchase or
transaction regarding products or services offered by the person or entity
involved. Generally, you may put an end to that relationship by telling the
person or entity not to place any more solicitation calls to your home. Additionally,
the EBR is only in effect for 18 months after your last business transaction or
three months after your last inquiry or application. After these time periods,
calls placed to your home phone number or numbers by that person or entity are
considered telephone solicitations subject to the do-not-call rules.
It would seem that an inquiry that would establish an EBR would be:
TI. Substantiation: telephone log such as maintained by Aspen or a
contemporaneous record in InTouch
Walk-in. Substantiation: guest register
Web Lead: substantiation: record on GGI web log
Guest. Substantiation: guest register
Referrals: If the referred person has made no inquiry of the gym, calling this
person individually or with an auto-dialer would seem to violate the law.
How do we create an EBR with a referral? We ask the referring person to
contact, call or text the referred person. The contact, call or text must
provoke some action to cause the referred person to make an inquiry or contact
the gym in some way thereby creating an EBR.