How can I protect my club?
If your business engages in any text message or phone call marketing, review your practices with renewed scrutiny. Some defendants have sought relief from their insurance companies, but unfortunately TCPA lawsuits frequently exist in an uncovered gray area. Two TCPA lawyers encourage business owners to be proactive in talking with their insurers, requesting coverage or adding a specific rider to their policies, explicitly covering TCPA lawsuits.
Most importantly, if you, your employees, or independent contractors communicate with clients or potential clients via text message, you should request all clients and potential clients sign their consent to be contacted, through either an individual form or contract clause (including on your website). These forms should be updated as new technologies are introduced and integrated into your marketing strategy.
Some clubs have already integrated these consent forms or “opt-in” sections with their websites. These include—but are not limited to—the following provisions:
- The person must consent to be contacted via SMS text alerts;
- The person must be aware that an automated dialing system may be used (even if your gym does not use one);
- The person must know this is not a condition of purchasing any goods or services;
- The person must know that message and data rates may apply;
- The contract must explain how the person can stop receiving the messages and how they can revoke consent.
In order to keep up with those who have not given or have revoked their consent, keep an up-to-date internal do-not-call list to avoid contacting those who have opted out.
Do not let your club be accused of violating the TCPA. The legal fees associated with taking these suits to trial could force you out of business before the trial is even complete. Settling these cases to avoid trial often results in over a million dollars in damages. Integrate consent language into your website and forms now if you use or intend to use text messages and phone calls for marketing purposes.