Ep 56: Is Spam Texting Legal?

June 18, 2014

Nasir and Matt talk about the recent lawsuits filed against companies in Manila about spam texting. They then answer, “We have a PTO system in place that allows employees to take days off, but many of my employees are requesting the same days off because of the World Cup. Can I prevent some from doing this?”

Full Podcast Transcript

NASIR: Welcome to Legally Sound Smart Business!
My name is Nasir Pasha.

MATT: And this is Matt Staub.

NASIR: We both remembered our names. Great!
This is our podcast where we cover business in the news and answer some of your business legal questions that you, the listener, can submit to ask@legallysoundsmartbusiness.com.

MATT: Yeah, if they can get through typing in the name, sometimes, the questions are shorter than the actual email address they type in to.

NASIR: That’s true. Well, that’s the biggest obstacle – getting the email right. If you get that right, then you’re more likely to get the question answered.

MATT: That’s true.

NASIR: More likely.

MATT: That’s definitely the case, I would hope.

NASIR: So, what have we got today?

MATT: We’re going to go international with our story for today.

NASIR: Nice.

MATT: Based out of Manila here but it’s two companies that are facing a lawsuit for what’s text spam.
Obviously, people know what spamming is and what texting is so I think they can piece together that, you know, what happened in this situation that people were just getting text spam messages. I’m sure it’s happened to everyone. I know I get them from time to time. Sometimes, it’s just gibberish. Sometimes, it’s a link. Sometimes, it’s whatever they have planned. Now, at least in Manila in the Philippines, it’s coming back to haunt them.

NASIR: Yeah, spam is an interesting thing because, obviously, people do it because it works. I mean, they may have to send to 10,000 or 20,000 or even much more than that to actually get any kind of response. I mean, I assume the response rate is low. But there’s a reason why people still do it – because spam works.
Now, I don’t know about text spam though because – you’re right – the stuff that I get on the phone is most of the time gibberish or obviously spam. But, at the end of the day, text spam is very hard to comply with because you have to get consent from them and it can’t be misleading and things like that whereas email spam is a little bit more flexible – at least in most states – in the sense that it can be unsolicited so long as it complies with the can spam act and that requires an unsubscribe list and things like that. Obviously, getting consent of the actual recipient is much better and it’s going to be much more effective.

MATT: Right. It looks like this is a situation where basically the company had gathered all these people’s names and phone numbers. I’m guessing they sold them to this third party who then is one of the two involved in the lawsuit for spamming them. They have to think that it’s going to come back to haunt them at some point. I don’t get the thought behind it.

NASIR: I think it works to a certain extent. You know, the problem is, if you’re a legitimate company – meaning you’re not selling something silly like these guys probably – and you’re trying to do a service, you know, text spamming is probably not the way to go. I know there’s a lot of text marketing out there that you can go through some opt-in processes, but it’s very difficult to do it legally and effectively at the same time. Email is the same for that matter.
Keep in mind, too, it’s state by state. And so, California, for example, is a little bit more restrictive than the federal law. Also, there’s restrictions on how you get the email address. A lot of them get them from scraping these websites and so forth. That’s actually improper as well. Even when you do comply with everything else, how you got those lists is also important.

MATT: Yeah, all very true, and that’s why you see people from time to time, when they write their email address out, they’ll spell it out so it’ll be “ask” and then they spell the word “dot” then “at” Legally Sound Smart Business dot com.

NASIR: Yeah, and those aren’t as effective anymore. It kind of depends upon how you switch it up because a lot of scrapers can read those, too.
Actually, what I do is a put a different email address for every single website that I use or whatever. So, if someone does spam me from someone else other than that website that I know who gave out that address or how they got that address. But that’s assuming you’re able to have a domain name customized to you and set that up correctly. Kind of a fun little tech tip in there.

MATT: So, how many email addresses do you have?

NASIR: It all gets forwarded to my main email address. But I’ll have, for example, you know, pashalaw.com, if I register for – I can’t think of anything that I can register for. I can’t think of one website other than pashalaw.com. I don’t think there’s any more out there. Let’s say it’s eBay. Then, I would do ebay@pashalaw.com. That way, I know if someone else steals that email address to send me spam, I know where it came from.

MATT: All right. Well, people can take that advice if they want, I guess. I don’t know. Not my thing.

NASIR: That’s the better advice – the tech advice.

MATT: Well, we haven’t even gotten to our question of the day yet. I guess that’s where we really give the advice. That was a little appetizer.
[MUSIC]

MATT: We’ll get into the question of the day now.
“We have a PTO system in place that allows employees to take days off. But many of my employees are requesting the same days off because of the World Cup. Can I prevent someone from doing this?”
This comes from New York City.

NASIR: Have you been watching the World Cup? Well, there’s only been one game so far and there’s a game going on right now.

MATT: Yeah. I mean, I’m not a huge soccer person but I will watch the World Cup, especially Team USA. But I can’t say, once they get eliminated, I care too much about it.

NASIR: I think it’s a very fun time of the year. I understand this because people in certain circles of friends and so forth, they really get into this and I could imagine they would want to take off, they want to watch at the same time. All the games this year are during the middle of the day. I think it starts at 12:00 Eastern and then goes all the way till – I think the last game starts at 6:00 p.m. Eastern or something like that. So, yeah, it’s in the middle of the day. It’s kind of like the NCAA tournaments. People are watching on their computer desk or whatever. But, in general, PTO, first of all, in pretty much every state, you’re not required to give vacation time. In some states, you’re required to give sick time and we talked about in New York City, for example, they have required sick leave now and so forth. But PTO, of course, is paid time off and that is a combination between vacation and sick time. It basically allows them to use it however they want. In general, besides sick time, I want to separate that out for a second because, like, New York City has specific rules for it. If it’s vacation time, you can pretty much dictate how that is used and you can even force your employees to take vacation. For example, let’s say you have a slow time of year – classically maybe in December – then you can actually require your employees to take that time off at that time. But the trick is to actually putting that into a policy. You have to make sure – just as you would everything else – how many sick days they get or how many vacation days they get or PTO. You also have to specify how that process works. A lot of times, it requires the consent of the manager and so forth.

MATT: Yeah, and you’ll see this more commonly with places where something like a bank, for example. Let’s say you have three tellers – I want to use a better example – the post office. I had to go there recently. They seem to be the worst for this. They have four people that are assigned to work for the day and three of the four are always on lunch or on break. As long as I always have the one, you know, that’s fine. But something like a bank where there are three tellers and, at all times, two of the three have to be there. I guess this isn’t necessarily getting into PTO but moving back up even further here. Let’s say you have a pool of…

NASIR: It’s related though.

MATT: Five tellers to choose from that all have to work. So, only four of the five have to be there on any given day. If one person takes the day off, then the other four have to work. It took me a lot time to get to my point but at least I got there.

NASIR: What they didn’t say is that this company is actually FIFA. They’re asking if they could take off for the World Cup. That’s a different issue.
Well, one thing that they could do, if they have that many people, you know, I like the idea of fitting your company to the culture of your employees. If a lot of your employees are into the World Cup, then maybe adjust your hours, if you can, possibly. You know, I don’t know if it’s an office setting or whatever but see if you can integrate the World Cup into your business. I think that’s a better idea. Obviously, from a legal perspective, you can dictate it pretty much however you want when it comes to the PTO but that’s just kind of an alternative strategy kind of non-legal perspective.

MATT: Yeah, also, you can just put the match on in your office and turn the sound on because soccer is really nothing happens for 85 to 90 minutes. All you’ve got to do – this is what I do – just listen for when the announcer’s voice is raised then you know something exciting is happening. The rest of the time, it’s just kicking the ball to each other in the middle of the field.

NASIR: You know, I read a statistic about our listener audience and 95 percent of them are huge soccer fans. You’ve just turned them all off.

MATT: Oh.

NASIR: You just lost 95 percent of our audience because of that.

MATT: That’s fine. Good thing we have one billion listeners.

NASIR: Oh, okay. I suppose we’ll get them back somehow.

MATT: Yeah, we’re fine. I’m not worried.

NASIR: All right. Well, that’s our episode. Thanks for joining us.

MATT: Yeah, keep it sound and keep it smart.

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Legally Sound Smart Business

A business podcast with a legal twist

Legally Sound Smart Business is a podcast by Pasha Law PC covering different topics in business advice and news with a legal twist with attorneys Nasir Pasha and Matt Staub.
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