December – 2013

Make Sure Your Texting Programs Are Legally Compliant
The Eviction Educator
THS Supports Marine Corps’ Toys For Tots Program

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Volume 14 • Issue 12 December 2013 Landlord News 3600 South Yosemite Street Suite 828, Denver, Colorado 80237 thsnews@thslawfirm.com www.thslawfirm.com Denver Phone 303.766.8004 FAX Completed Eviction Forms To: 303.766.1181 or 303.766.1819 Colorado Springs Phone 719.550.8004 FAX Completed Eviction Forms To: 719.227.1181 MAKE SURE YOUR TEXTING PROGRAMS ARE LEGALLY COMPLIANT Nearly two hundred billion text messages are sent monthly. As the popularity of text messaging continues to grow, texting programs have become more common in the multi-family industry. Texting residents is becoming another amenity (your package has arrived), a way to quickly notify residents of important information (painting of buildings starts tomorrow), and a way to follow up with prospects. Communities may want to send text messages for countless reasons, for both marketing and informational purposes. However, texting consumers (residents) is subject to federal regulation. Specifically, the Federal Communications Commission (FCC) has adopted significant regulations protecting consumers from unwanted texts. The new FCC regulations went into effect on October 16, 2013. Accordingly, your community’s texting activity should be carefully evaluated to avoid substantial liability. The Telephone Consumer Protection Act (TCPA) regulates telephone communications. The FCC is empowered to issue rules and regulations implementing the TCPA. The TCPA was originally enacted to apply to telephone calls. Are texts calls? Yes. In the past, this was subject to dispute. However, given past FCC interpretations, the recent regulations enacted by the FCC, and court rulings, nobody can dispute that text message are subject to regulation. The law now prohibits the unsolicited transmission of text messages. The TCPA allows individuals to file lawsuits and collect damages for receiving unsolicited telemarketing texts, as well as calls, faxes, pre-recorded calls or autodialed calls. The potential civil liability for sending unauthorized texts to your resident is staggering. Under the continued on page 2 1. If you are a property manager for multiple property owmers; cases will be filed under your account, not the owner’s account. If the owner wants to be the point of contact, please have the owner contact our office to set up their own account. 2. Make sure to list the names of ALL leaseholders on the eviction demands. 3. If your resident appears in court and signs our standard stipulation agreement, it does not mean or require that you must work with them. The settlement stipulation language specifically states that any arrangements are at the sole discretion of the Landlord. JJJJJJJJJJJ Happy Holidays! MAKE SURE YOUR TEXTING PROGRAMS ARE LEGALLY COMPLIANT continued from page 1 TCPA, plaintiff can recover statutory damages ranging from $500 to $1,500 per unsolicited text. Courts analyze whether a violation is willful, in determining statutory damages. Because text ad campaigns or even text informational messages are often sent to an entire community, damages could rack up quickly, especially if the unauthorized sending of texts is carried out over months or years. Where there is money to be made for technical violations, there are lawyers. Plaintiff class action lawyers are active in seeking and filing TCPA violation cases, because the violations are both lucrative and easy to prove. In one case, the court awarded ten million dollars in damages, with the attorneys taking three million. Under the law, informational or transactional texts are not subject to the same requirements as marketing or advertising texts. Informational texts are things like “your flight is delayed” or “water to the building will be shut off today between 2-4.” Marketing texts are solicitations (“act now to get 20% off”), offers, or promotions regarding products or services. In theory, any text that is not a marketing text is an informational text. While you do not need written consent to send a resident an informational text, we strongly recommend that you obtain written consent for both informational and marketing texts for several reasons. Informational texts require prior express consent, whereas marketing texts require prior express written consent. The key point is that both require prior express consent, and the only difference is that marketing texts require written consent. If challenged, you bear the burden of proving that a resident consented to receiving informational texts. Written consent leaves no doubt that the resident consented. Further, if an informational text is interpreted to be a marketing text, you are protected if you have obtained prior express written consent. What constitutes prior express written consent or PEWC? Before you start sending texts to a resident, the resident must first give you consent. Express means that continued on page 3 THS SUPPORTS MARINE CORPS TOYS FOR TOTS PROGRAM THS has once again committed to support the Marine Corps TOYS FOR TOTS program, in lieu of hosting a client holiday party. Although the THS Team has always enjoyed hosting the annual holiday party we have elected to allocate the monies budgeted for this event to helping Santa bring a little holiday happiness to needy children. In these tough economic times, even the jolly man in the red suit can use a little help. Last year, TOYS FOR TOTS was a very short in meeting its goal and fulfilling all of the requests for toys that they received for the less fortunate among us. Over 785 requests for toys went unanswered in 2012. We are doing what we can to make sure the Marines do not fall short in meeting their 2013 goal. At the conclusion of our drive, members of our staff and staff children deliver the toys to the Marines toy warehouse. It is a very humbling experience to see how many toys the Marines collect and deliver and still know that many request go unfilled. We encourage anyone who would like to participate in this worthy cause to donate a new toy at a Toys for Tots collection center near you or drop one off at our office. If you need to locate a collection center, you can go on line at www.ToysForTots.org to locate a place where you can donate. Landlord News December 2013 Page 2 MAKE SURE YOUR TEXTING PROGRAMS ARE LEGALLY COMPLIANT continued from page 2 the resident’s choice to opt-in (receive texts) with knowledge cannot be disputed. The resident’s consent must authorize you to send texts (marketing or informational) to the authorized number, along with a disclosure that the resident will receive future texts. The sender of the texts (either the community or the management company) must be clearly identified in the disclosure. The disclosure should also advise the resident that the resident’s consent is not a condition of leasing or residing at the community. Written means the resident’s consent must be signed. Signed includes an electronic or digital form of signature, to the extent such form of signature is recognized as a valid signature under applicable federal or state contract laws. Written agreements obtained in compliance with the Federal E-Sign Act satisfy the requirements. If a dispute arises regarding whether or not the resident gave prior express written consent to receive texts, you bear the burden of proof. You must be able to establish a paper trail that shows the resident provided prior express written consent to receive text messages. The statute of limitations for text related lawsuits (lawsuits based on your alleged failure to obtain prior express written consent) is four years. Thus, you should retain PEWC records for at least four years, but fiveyear retention is recommended. The law is not clear whether consent obtained prior to its effective date (October 16, 2013), can be relied on. Accordingly, even if you have previously obtained some form of consent from a resident to receive texts, you should have the resident re-consent in compliance with the new legal requirements. You or your vendor should always follow best practices, which should include the following requirements. All text programs or campaigns should require a double opt-in. The resident first joins the program by initiating a request (texting the join number). Your system automatically replies with a text to the resident which concludes with “to give us your prior express written consent” text (reply) YES. Your disclosures made, during consent process, should let the resident know when and how often the resident should expect to recieve texts. For example, we will text you anytime we have a service call scheduled for your apartment. Your disclosures shouldclearly identify the sender of future texts. All future texts should give the resident the ability to opt-out of receiving future texts (to stop receiving future texts reply STOP). Disclose that carrier and data charges may apply. Only send content described in the initial opt-in request. To avoid potential pitfalls, you should ignore the subtle difference in requirements between transactional and informational texts, and obtain prior express written consent in every instance. If you currently are sending texts from a text database that was established prior to October 16, 2013, you should confirm that you are in compliance, and don’t rely on prior business relationship. The new FCC regulations specifically eliminated the prior business relationship exception, and thus consent is required in all instances. Even if you obtain express prior written consent from a resident to send them texts, you should consider obtaining it again periodically. Requiring a resident to double opt-in (text to join, and confirm ”YES”) is strongly recommended in all cases. This is a complicated area of law, which is evolving. To avoid mistakes, programs should only be set up by and monitored by knowledgeable persons. When using outside vendors to set up texting programs and databases, the contract should require the vendor to both certify that the program is legally compliant, and to indemnify you if it is not. JJJJJJJJJJJ Landlord News December 2013 Page 3 IMPORTANT THS DECEMBER DATES December 20th THS CLOSED AT 12:00 NOON HOLIDAY STAFF LUNCHEON December 23rd -27th JEFFERSON COUNTY COURTS CLOSED CHRISTMAS WEEK December 25th ALL COURTS CLOSED CHRISTMAS DAY HOLIDAY THS Closed CHRISTMAS DAY HOLIDAY January 1st ALL COURTS CLOSED NEW YEARS DAY HOLIDAY THS Closed NEW YEARS DAY HOLIDAY A POLITICALLY CORRECT SANTA ‘Twas the night before Christmas and Santa’s a wreck… How to live in a world that’s politically correct? His workers no longer would answer to “Elves,” “Vertically Challenged” they were calling themselves. And labor conditions at the north pole Were alleged by the union to stifle the soul. Four reindeer had vanished, without much propriety, Released to the wilds by the Humane Society. And equal employment had made it quite clear That Santa had better not use just reindeer. So Dancer and Donner, Comet and Cupid, Were replaced with 4 pigs, and you know that looked stupid! The runners had been removed from his sleigh; The ruts were termed dangerous by the E.P.A. And to show you the strangeness of life’s ebbs and flows, Rudolf was suing over unauthorized use of his nose And had gone on Geraldo, in front of the nation, Demanding millions in over-due compensation. And as for the gifts, why, he’d ne’er had a notion That making a choice could cause so much commotion. Nothing of leather, nothing of fur, Which meant nothing for him. And nothing for her. Nothing that might be construed to pollute. Nothing to aim. Nothing to shoot. Nothing that clamored or made lots of noise. Nothing for just girls. Or just for the boys. Nothing that claimed to be gender specific. Nothing that’s war-like or non-pacific. No candy or sweets…they were bad for the tooth. Nothing that seemed to embellish a truth. And fairy tales, while not yet forbidden, Were like Ken and Barbie, better off hidden. For they raised the hackles of those psychological Who claimed the only good gift was one ecological. No baseball, no football…someone could get hurt; Besides, playing sports exposed kids to dirt. Dolls were said to be sexist, and should be passe; And Nintendo would rot your entire brain away. So Santa just stood there, disheveled, perplexed; He just could not figure out what to do next. His sack was quite empty, limp to the ground; Nothing fully acceptable was to be found. Something special was needed, a gift that he might Give to all without angering the left or the right. A gift that would satisfy, with no indecision, Each group of people, every religion; Every ethnicity, every hue, Everyone, everywhere…even you. So here is that gift, its price beyond worth… “May you and your loved ones enjoy peace on earth.” Landlord News December 2013 Page 4