November 2018

Make Sure That Your Texting Programs Are Legally Compliant
2019 THS Schedules For Value-Added Events

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Volume 19 • Issue 11

NOVEMBER 2018

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 THAT YOUR

TEXTING PROGRAMS ARE LEGALLY COMPLIANT

Nearly 200 billion text messages are sent monthly. As the popularity of text messaging grows, texting programs have become more common in the rental housing industry.

Texting has become an important means of communication in society today and its use in day to day communications among residents and management team members is destined to increase dramatically as mobile capabilities permeate multifamily properties. 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. And texting is not limited to resident communication, it also occurs between management employees. Text messaging is going to be fundamental in property operations, so industry leaders need to prepare and protect themselves as they work with all involved parties, including vendors.

The Federal Communications Commission (FCC) has adopted significant regulations protecting consumers from unwanted texts. The new FCC regulations went into effect on Oct. 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The TCPA was originally enacted to apply to telephone calls.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

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2019 THS SCHEDULES FOR

VALUE ADDED EVENTS

When you visit our website or read our Newsletter you frequently see references to the Firm’s “Value Added Services.” Every year in our November Landlord News we publish the Schedules of Events for the upcoming year for the programs and activities that we provide for you that are a part of the THS Value Added Services. In conjunction with the posting of the 2019 schedules, it is appropriate to remind you of the THS comprehensive package of ‘no additional cost’ services that we provide for active clients in value-added services and we encourage you to take full advantage of these client benefits

Our full array of comprehensive customized Value-Added Client Services is what sets THS apart from other landlord firms. We provide Value-Added Services because we believe that providing clients with the preventive-law tools of education and other resources makes it easier for clients to stay in compliance with the law. We know that better-educated clients are less likely to get into legal trouble.

The term ‘Value-Added’ refers to a service that delivers MORE! It is defined as increased services provided to a client at no additional cost. Everyone can agree that getting more service than you expect for a fee, is always a good thing. But, what exactly does this mean for you, the client? It is easy to explain. At the Firm, the keyword in THS Free Value-Added Services is ‘Services’. So, what are these Free Value-Added Services?

Educational Workshops

Our workshops are designed to educate and

assist owners, managers, and staffs on today’s

complex Landlord-Tenant Laws. For a full list

of available workshops, please check out our web

site education tab at thslawfirm.com.

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MAKE SURE THAT YOUR TEXTING

PROGRAMS ARE LEGALLY COMPLIANT

continued from page 1

subject to dispute. However, given past FCC interpretations, the recent regulations enacted by the FCC, and court rulings, nobody can dispute that text messages are subject to regulation. The law now prohibits the unsolicited transmission of certain types 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 TCPA, plaintiff can recover statutory damages ranging from $500 to $1,500 per unsolicited text. Courts analyze whether a violation is willful, when 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 $10 million in damages, with the attorneys taking $3 million. Certainly surprising in today’s environment where millennials and others are rapidly migrating to texting as a primary means of communication. 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 p.m. and 4 p.m.” Marketing texts are solicitations (“act now to get 20 percent 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

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2019 THS SCHEDULES FOR VALUE ADDED EVENTS continued from page 1

Situations

Our Situation Manager is an integral part of the

team that provides Value-Added Service to you.

All situations are handled by one of our nine

attorneys. THS believes that if a client hesitates

to call because of a concern about incurring

hourly legal fees, it could lead to serious legal

ramifications and costs. Unlike other law firms,

we believe that this type of advice should be

included in the client’s basic eviction fee struc-

ture. Only situations that are, or evolve into,

complicated, on-going matters are charged on an

hourly attorney basis.

Web Forms & Lease Addendum

Forms, Documents, Demands, Notices and Lease

Addenda are available and can be downloaded for

free from our website by Firm Clients.

Resource Library

Clients ‘only’ have access to an extensive library

of resource material dealing with every possible

topic of interest to owners/managers/staff who

work in the multi-family rental housing industry.

Monthly Newsletter

Our philosophy of “Value-Added Services” began

with the newsletter you are reading right now…

The Landlord News. Early on in the history of

the Firm, we challenged ourselves to produce a

newsletter that would provide thorough, relevant,

timely rental housing industry articles

that addressed the legal needs of our clients.

Client Luncheons

Building a positive interpersonal relationship

with our clients is paramount to providing the

personalized service that allows our attorneys and

staff to answer questions and resolve issues

efficiently and effectively. What better way is

there to build our relationship with you than

face-to-face, over a free lunch?

Webinars-Videos

Training by Webinar is available to our clients

who cannot come to a class or clients who are

outside the Denver Metro/Colorado Springs area

and cannot, because of distance, attend our

workshops. In the same vein, we provide short

videos, on our website, that explain different

legal issues that face the Colorado Rental Hous-

ing Industry.

Blawg (BLOG)

We post “bLAWgs” on our website to keep clients

updated and informed about relevant property

management issues. New ‘BLAWgs are added on

a regular basis, so check them out.

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NOVEMBER 2018

Page2

Landlord News

MAKE SURE THAT YOUR TEXTING

PROGRAMS ARE LEGALLY COMPLIANT

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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 begin sending texts to a resident, the resident must first give you consent. Express means that the residents’ choice to opt-in (receive texts) with knowledge cannot be disputed. Residents’ 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 or that it be obtained in compliance with the E-SIGN Act, which includes permission obtained via an email, website form, text message, telephone keypress or voice recording.

If a dispute arises regarding whether the resident gave prior express written consent to receive texts, you bear the burden of proof. You must be able to establish a documented 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. The law is not clear whether consent obtained prior to its effective date (Oct. 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 reconsent in compliance with the new legal requirements. You or your vendor should always follow best practices, which

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2019 THS SCHEDULES FOR VALUE ADDED EVENTS continued from page 2

Please check out the 2019 calendar schedules for Workshops, Webinars and Luncheons in this Newsletter and register on our website thslawfirm.com/events to participate in these events. Remember it is never too early to register for a class, luncheon or webinar as space is limited for each of these activities/events.

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NOVEMBER 2018

Page3

Landlord News

MAKE SURE THAT YOUR TEXTING

PROGRAMS ARE LEGALLY COMPLIANT

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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 receive texts . For example, we will text you anytime we have a service call scheduled for your apartment. Your disclosures should clearly 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 Oct. 16, 2013, you should confirm that you are in compliance, and don’t rely on a 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.

FYI –This article was written by THS Attorney’s Mark Tschetter & Karen Harvey and recently appeared in the NAA APARTMENT TECHNOLOGY NEWS.

NOVEMBER 2018

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Landlord News

2019 THS SCHEDULES FOR VALUE ADDED EVENTS continued from page 3

IMPORTANT THS NOVEMBER DATES

NOVEMBER 8TH ADV. FAIR HOUSING WORKSHOP

THS Lower Conference Center 3600 S. Yosemite Street Denver, CO

1:00 p.m. – 4:00 p.m.

NOVEMBER 9TH AAMD TRIBUTES

NOVEMBER 12TH VETERANS DAY HOLIDAY

ALL COURTS CLOSED

NOVEMBER 14TH WEBINAR WEDNESDAY

“SOURCE OF INCOME PROTECTONS:

How Accepting Vouchers May

Impact Your Property” 9:00 a.m. – 10:00 a.m. Online

NOVEMBER 20TH NO EL PASO COUNTY COURTS

NOVEMBER 22ND THANKSGIVING HOLIDAY

ALL COURTS CLOSED

THS CLOSED

NOVEMBER 23RD ALL COURTS CLOSED

THS CLOSED

NOVEMBER 2014

Page5

Landlord News

NOTICE

EL PASO COUNTY CLIENTS

Please Note that there are

very limited court dates scheduled in November & December

CHECK THE FILING CALENDAR

(thslawfirm.com/evictions/filing-calendar)