Paul Benton: If you’re a plumber or a friend in the trades, you’ve come to the right place. Today we’re gonna be talking about compliance. Is it legal for your AI at your plumbing company to call a customer? That’s a lot more complicated than you might think, and today we are joined here with a specialist named John Henson, who is an attorney and the founder of Henson Legal.

Paul Benton: You can Google that and his law firm will pop right up. He has written an excellent legal circular explaining these issues, and the question I’m gonna ask John when we go through this is how much sleep should we as operators, should you as a plumbing company owner lose worrying about whether your AI is calling somebody or whether you’re texting somebody in a way that doesn’t comply with the law?

Paul Benton: Well, there is the, a national s- expert at the table today to answer these questions. John, welcome.

John Henson: Thanks, Paul. I’m glad to be here.

Paul Benton: John, you have founded a firm, uh, in 2025 specializing in what’s, uh, called TCPA and TCPA compliance, and you have substantial legal experience. You were formerly the acting general counsel of a little company called LendingTree, and prior to that you guided several national brands through the labyrinth, the maze of the Telephone Consumer Privacy Act, the TCPA.

Paul Benton: And this is a body of law that basically tells mortals who are not lawyers what they may and may not do in texting, calling, and communicating with customers. We’re not gonna get into, unless you would like to, the state issues, because in addition to the federal law, there are all these hundreds of individual state laws.

Paul Benton: But I would love it if you could set up this conversation because- I have brought you, I’ve, I invited you to the table today because I have, on behalf of our clients, been sourcing the latest, uh, in speed to lead technology. So some of these great, uh, best of breed technologies out there like Broccoli and Hatch and Avoka.

Paul Benton: And if a plumbing company or a trade company today isn’t using them, they sure will be soon, because you’re gonna fall behind and not be competitive, and you’ll be losing customers if you do not have a way of answering how do you get to your leads first. But when I sat down with all these great vendors, I would ask them, “So can, is it legal to, for the AI to make a phone call?”

Paul Benton: And at that point, and I’m imagining this is what a lot of the people in the audience are, experience, the vendors would have basically, uh, I don’t know, that’s for others to decide, and that’s you, John. Yeah. Help us understand, set it up for us, how much sleep should a plumber lose over texting and AI, and, uh, start by telling us what the TCPA even is

John Henson: I…

John Henson: And I would say that the how much sleep to lose, I think that this is the area that we can do well. It can be done correctly, it can be done compliantly, and it’s not overly burdensome to do so. But there are some risks there, and those risks start with the TCPA, as you said. So the TCPA has essentially two buckets, right?

John Henson: So we have the regulated technology bucket, which talks about what technology you’re using to contact the customer, and then what is required to do so. Then the other bucket is the do not call bucket, and we’re mostly probably all fam- fairly familiar with that, uh, but there are some nuances in there as well.

John Henson: So let’s talk about the regulated technology bucket first. Under the TCPA, you have to have prior express consent to use automated telephone dialing system, which we’ve all called auto dialers in the past, or the use of pre-recorded or artificial voice. And in 2024, the FCC, which is the governing body over the TCPA, came out and said, “Pre-recorded artificial voice is gonna encompass artificial intelligence generated voice,” so AI generated voice.

John Henson: So if you’re using AI generated voice, all the requirements in the TCPA and the regulations around the TCPA that apply to pre-recorded or artificial voice will apply to AI voice. And that is an area that people miss a lot, because they think, “Oh, I’m just gonna go put this AI dialer in my CRM, and it’s gonna be fine.”

John Henson: Well, not necessarily. So what are the requirements to use this regulated technology? Well, for, as we said, it’s prior express consent, but that only applies to informational calls, right? So an informational call is a call not trying to sell you something, right? And we’re gonna talk a lot about that, I’m sure.

John Henson: The other area is marketing calls, right? So a marketing call is, “I’m trying to sell you something.” That requires prior express written consent, right? And so that is a different stricter level of consent than prior express consent.

Paul Benton: So can I jump in here a minute, John? Yeah. Mm-hmm.

John Henson: Sure.

Paul Benton: So what I’m, uh, encountering in various conversations is, let’s use a real word- world example of the Yelp, uh, request a quote feature And the many types of autoresponders that are out there.

Paul Benton: What I am often con- uh, encountering are folks that are saying, well, because a user has accepted Yelp’s terms, and I’ll just, uh, uh, I shared, uh, the sentence that I pulled from their, uh, terms and conditions. It- Yelp, in its terms, says, “By accessing or using the Service, you consent to receive communications from other users and Yelp through the Service or through any other means, such as emails, push no- notifications, text messages, and phone calls.”

Paul Benton: So I think the devil is in the detail. If a user has accepted that at the back end when they signed up for Yelp, under what you’re sharing with me, are we covered? Is that the express written consent?

John Henson: So that’s a great question. So arguably, it’s express consent. Probably, you, you have a good argument for that because there’s a lot of case law out there that says anything, anytime a consumer gives you their phone number is essentially express consent.

John Henson: But that does not mean it’s prior express written consent, right? So what does that mean practically? And let’s use, let’s use the Yelp example. So I filled, I filled out a form on Yelp just a minute ago, just so I could go through the process. Uh, you know, I click I need a plumber, I need toilet unclogged or whatever, and it says, “Put in your email address,” and at the bottom of the screen, it says, “You agree to our terms and our privacy policy.”

John Henson: Okay, fine. Accept. Then it asks for your phone number, and then it says, “Message and data rates may apply Or something incredibly similar to that. The, when you click on that, that is giving express consent to be contacted. Okay? Now, there’s a lot of things that come into play there, and part of it is the DNC, like we talked about, right?

John Henson: So in case I called that… Now, let’s say that I called that customer and said, “Hey, this is John’s Plumbing. You want to be– John’s Plumbing and Electric, and you wanna be called about, um, your toi- clogged toilet. Is that correct?” “Yes.” Okay? That would allow me to do that manually, even if that number’s on the DNC list, because that’s an inquiry.

John Henson: Okay? Do not call list, correct? The do not call, yep, do not call list. Yep. Sorry. Yep, the do not call list. If it’s a– because that’s a inquiry into my plumbing services, right? Now, is that sufficient for the use of AI voice or an a- or another automated technology? I would argue no, it’s not, because that’s not necessarily an informational call.

John Henson: You’re trying to sell your plumbing services to that customer, and you don’t have prior express written consent. And the difference there is the prior express written consent is an, is the consumer agreeing to receive a call That is an advertisement or telemarketing services that identifies the seller.

John Henson: We have not identified any seller at that point, right? We’ve just said, “You know I’m gonna call… That someone’s going to call you.” And when I looked at the list, yes, in fairness, I selected a company at the f- beginning of the flow, right? I have no idea who it was. It was the first one, right? I would not, I would argue that’s not e- express consent for that company to call.

John Henson: Re- f- excuse me, express written consent for that company to call. At best, it’s Yelp, consent for Yelp to call. At best.

Paul Benton: Let me, um-

John Henson: Mm-hmm …

Paul Benton: clarify. So typically in a Yelp request a quote, um, the plumbing company will identify themselves, “Thank you for calling John’s Plumbing. What’s the best number to reach you on?”

Paul Benton: And then the user will give a number. Is that sufficient to generate a call back from a human-

John Henson: For an inbound … and then later

Paul Benton: for AI?

John Henson: For an inbound calling, getting a number to call back, yes, I would say, as long as it’s regarding the same transaction, right? So thank you

Paul Benton: for calling J-

John Henson: So they can’t be

Paul Benton: called for insurance services if they were there- Correct

John Henson: for

Paul Benton: plumbing services.

John Henson: Correct.

Paul Benton: Okay.

John Henson: Correct. So you can see how this becomes an issue in lead generation, right? Mm-hmm. Because you have companies like LendingTree, right? That they have lots of different verticals, they have lots of different companies that they could, they could be calling. So we have to make sure we identify those con- those parties correctly.

Paul Benton: Okay, so that’s telling because if in a multi, uh, trade operation, if somebody called in to f- to fix a toilet, they d- have not consented to hear about upgrading their panel.

John Henson: Correct. Right. And that is a guideline-

Paul Benton: I’ll give

John Henson: you an example. Okay. I’ll give you an example. There was a case last year, uh, y- th- Paul, w- when you’re as old as we are, the years just run together.

John Henson: So it was either, it was either last year or the year before, but within the last, let’s say, 18 months, and customer buys a car from Lexus of Manhattan. And it was, uh, so they bought their Lexus from Lexus of Manhattan, Lexus of Manhattan goes out of business. Their sister company is New York Honda, okay?

John Henson: Owned by the same parent. New York Honda calls the con- customer and says, “Customer, don’t forget to come in on service on your Lexus at New York Honda. We’re running a special off, you know, oil changes,” or whatever. And the customer sued. And New York Honda was like, “Look, this is the s- this isn’t even a marketing call because these are the same…

John Henson: These are our customers. This other company doesn’t exist anymore.” And the court said, “Affiliated businesses can, at time, use each other’s list if the customer would understand that that affiliate is going to call them.” In this case, guy bought a Lexus from a Lexus dealership. He had a service at a Lexus dealership.

John Henson: He drives a Lexus. He had no idea a Honda company was going to call him, right? You can see how that plays out in the home services space, right? If you’re Birmingham Plumbing- Mm-hmm … and Birmingham Electric, right? Okay, maybe that, maybe I realize the same. But if you’re, but if I have a contract for plumbing services with Birmingham Electric, right, and their sister company, Great Southern Windows, calls me, they, I have no, I have no idea why they’re calling me, right?

John Henson: So it’s very entity specific. And not only that, when, when you, because you know as well as I do, a lot of our trade partners or, and companies have set up multiple divisions and d- multiple entities, so it’s not always as simple as you would think it would be.

Paul Benton: So can we back up a little bit? You had mentioned there is a difference between ex, uh, express consent and express written consent.

John Henson: Mm-hmm.

Paul Benton: When do you need each?

John Henson: So express consent is if you’re gonna, for an informational call. So again, we’ll keep using our plumbing example. Yeah. If you text me and say, “John, I’m coming to your appointment, I’ll be there in 45 minutes,” that’s clearly an informational call, right? I mean, we all agree that’s informational.

John Henson: If you text me six months later and said, “It’s winter. Don’t… Help, you know, call us if you wanna winterize your pipes, we’re running 20% off,” that’s clearly marketing, right? Now, we then have situations we have blended messages, right? “Your appointment is scheduled for tomorrow. We’ll be there at 10:00 AM.

John Henson: Don’t forget to ask about our add-on HVAC upgrade.” Right? That is a blended message. It’s informational in the fact that you’re telling me you’re gonna be at the appointment I scheduled, but it’s marketing ’cause you’re trying to upgrade, upsell me. So I kind of explain it like this, like at a, at a really s- kind of stupid level, right?

John Henson: Informational, I’m talking to you about money you’ve already spent. Marketing, I’m trying to get you to spend more money, right? So anytime you’re talking to a customer about money they’ve spent, right, that is informational, even if you’re trying to continue the transaction, right? So for example, the, I think the ultimate, like the best example of that is like a mortgage, right?

John Henson: So, you know, you’ve called mortgage person, you’ve sent them some documentation, and they call you back and they’re like, “Hey John, to finish your mortgage application, I need bank statements,” right? That’s informational. That’s not marketing, it’s just a continuation of that transaction

Paul Benton: But, but the distinction between express and express written is really the- Yeah

Paul Benton: where the rubber meets the road. So-

John Henson: It is …

Paul Benton: what’s an example for the plumber where I’ve given express consent but I’ve failed to give an writ- express written consent? And maybe- Yeah.

John Henson: So a great- Mm-hmm … a great one is the, an inbound call, right? So, “Hey John, is this the best number to call you back about this plumbing issue?”

John Henson: “Yep, it is.” Right? “What, um, uh, best number is 12345.” Great. I’ve given you my phone number. I know you’re gonna call me back about that partic- particular problem. That’s express consent. That does not grant that plumbing company the ability to put me on an e- or a text cadence, right? So in six months I get the Winterize text.

John Henson: That, that’s not the same thing. That is not the same thing. That is, that Winterize text is clearly marketing, and I have not given written consent for that. So your next question is how do you get that written consent?

Paul Benton: Yes, sir.

John Henson: Okay? There’s, there’s a couple ways. You would have the form, your form field.

John Henson: You know, you get the consumer’s information and it says some language at the bottom that says, “Hey, we may text or call you about promotional services or, you know, your service request at this number.” Okay? That is how you get the written consent on, on a website. If you get it in person, right, one way to do it is after I come and, and I, you’ve unclogged my toilet, I’m gonna sign an invoice.

John Henson: You see that a lot. And I have seen companies put that language on the invoice and say, “Hey, initial here. This just says that, you know, we can use your number to call you, uh, for marketing purposes or about this service.” Great. Ch- And then that, that, that is a possible way to do it. I’ve also had clients go through email, right?

John Henson: So I send you an email and say, “Hey, we’re gonna be out there, you know, tomorrow. Please confirm your number for, so we can contact you about this and other marketing services,” blah, blah, blah. Great. Click. That’s done too. So there’s lots of ways to do it. The main thing is get the written consent and be able to retain that written consent.

John Henson: Uh, other than those two things, the other thing to think through is how do you, and we can talk about this some if you want, is how do you handle when a customer says, “Don’t call me anymore.” Right? Because that is where a ton of litigation is around. So that’s, that’s the other area is, is when do you stop calling those customers?

Paul Benton: So if we can switch gears, we’ve been talking more generally about when you can call. When can AI call? So in an example, we’ve got now a, uh, the evolution of AI receiving calls, but AI can also make calls, for example, in a missed call situation, which we can get to in a moment about the text back situation.

Paul Benton: If a customer calls in, uh, gets, the call gets dropped, can an AI pick up the phone and call them back and say, “Hey, we saw that you, uh, uh, we missed a call from you. Can I connect you to an agent right now?” Is that compliant?

John Henson: Potentially. You could set it, I mean, I’m not gonna say no, but I’m also not gonna say yes.

John Henson: I, there’s, the way that is set up is critical. So for example, missed call, hang up. I would not do that. Missed call, voicemail, “Thanks for calling John’s Plumbing. We’ll have someone call you back shortly at 2345. Uh, if that’s okay, press one. One.” Great. Then that’s, that’s great. Those are probably the extremes of either one, and, uh, Paul, I like to say everything in life is a spectrum, right?

Paul Benton: Yes. Completely.

John Henson: Mm-hmm. But, but those, let’s say those are the two extremes. You know, th- there are areas in there that we can slide those either way. So- But I think that it is possible. Uh, it just takes a little bit of thought and messaging to the consumer. And I, I tell clients this a lot, uh, not just about TCPA or phone compliance, just consumer compliance in general.

John Henson: If you tell the consumer what you’re gonna do and then do it, that eliminates a lot of compliance problems there. So if we tell the consumer, “Hey, you missed our, we missed your call, that’s on us. Is it okay if we call you back at this number? Click yes.” Great. And then you call them back, that’s fantastic, right?

John Henson: But you can see using that two-step rubric there of like, if we, if I call and I just hang up and then I call back, I’m like, “Why are you calling me? If I wanted to leave a voicemail, I would have,” right? So- So it’s, it’s definitely a balancing act.

Paul Benton: So is the… Under what circumstances should plumbers be thinking about using AI to make outbound calls?

Paul Benton: Is that a thing yet? Is that legal- Yeah … yet?

John Henson: Yes, it is. Uh, I mean, I have, I have clients in various verticals, including home services, doing it. Um, so however, when we do it, we set up… I, I’ll say this. The best way to think about it is if you’re thinking about all your leads as one giant funnel, that’s a problem, and you’re gonna h- you’re gonna run into issues.

Paul Benton: Okay.

John Henson: What I see customers do, and the ones that have good success at it, is there is some sort of categorization they do, whether it’s by channel, right? Like, these are the customers that came through my website that I control all the language on, and therefore I feel more comfortable calling these consumers, right?

John Henson: Because I know what they’ve agreed to. Versus, and we’re gonna pick on Yelp today, and I’m sorry, but versus, hey, these are the Yelp consumers and I don’t love their language, so maybe I don’t put them through an AI voice. Maybe I just manually dial those customers, right? So you can see, again, everything being a spectrum, that you pick where, who, how you wanna bucket those channels and your, and your, uh, marketing partners in and where to bucket those.

Paul Benton: Well, you had- So

John Henson: we-

Paul Benton: You had mentioned Yelp. So in that sentence, in the, in Yelp’s terms in, in paragraph E, it’s only one sentence, it says, “By accessing or using the service, you consent to receive calls by others.” It doesn’t say AI calls, it just says calls.

John Henson: It doesn’t.

Paul Benton: So if, in, in the Yelp context, and that is not sufficient to, uh, permit an AI to make an outbound call on its own.

Paul Benton: Correct?

John Henson: Uh, I would want my clients to think very long and hard about that. Let’s both go on. Okay. And then- I am not Yelp’s attorney. I have no connection to Yelp whatsoever other than we’re talking about them, but, like, I don’t like that language. I think prior express written consent is clearly defined as what needs to be included in that, and that does not do it.

Paul Benton: Written, so it pro- written consent in order to get the… Is that, is that relevant to whether it’s AI or human? Does it make a difference?

John Henson: It’s AI, because, because AI falls under that regulated technology bucket that we talked about-

Paul Benton: Okay …

John Henson: we have to have prior express written consent to send them marketing messages, either voicemail or text mail, I mean, or text messages, right?

John Henson: So we have to have that if you’re gonna use AI voice. And again, because we know what is supposed to be included in prior express written consent, that does not include it.

Paul Benton: Okay. So that’s really helpful. So basically, am I correct to understand that in the Yelp autoresponder flow, if a customer gives up a phone number and sa- wh- when asked from John’s Plumbing, “What’s your phone number?”

Paul Benton: That is sufficient as express consent, not written consent, but express consent for John to make a, a human phone call, but it is insufficient for an AI to make that call. That’s basically the difference. Is that fair?

John Henson: So if, if y- let’s… I do want to take a step back. So we’re gonna assume- I, I think it’s very…

John Henson: I, I wanna make something very, very clear that I think we’ve kinda glossed over, and that’s 100% my fault. What the TCPA is concerned with is outbound calls. Okay?

Paul Benton: Mm-hmm.

John Henson: So if you’re going to use an outbound call to market for a- and use AI voice in an outbound call to market, you have to have the prior express written consent.

John Henson: So if you’re getting an inbound lead from Yelp, right, and they call you and say, “Hey, is this your phone number? Can I call you back?” Yes. You should not use AI voice on those people, right? Unless it, unless you know that it’s gonna be purely informational, right? And I would, I would also limit that timeframe you used it, right?

John Henson: So I-

Paul Benton: Purely informational, John, this is important, purely informational could be, “Thanks for calling us for your, uh, your d-, uh, your clogged toilet. Would you like us to come over and fix it for you?” That’s informational. That’s not selling them anything.

John Henson: I- that’s marketing, ’cause you’re trying to sell ’em, you’re trying to sell them your services to come over.

Paul Benton: So that is marketing. Okay.

John Henson: Af- yes, I would think because the intent of that is to sell them something. Now, if they’re on the phone and they set up an appointment, and you call them back the next day and say, “Hey, remember, just confirming your appointment for today,” that’s informational, right? So you can see how this gets very gray very quickly.

Paul Benton: Agreed, and that’s why there are, uh, professionals like you to advi- to guide people through the maze. Let me ask you, if I may, I’m seeing some technologies out there that are using AI to create a phone bridge. So in Yelp, a number will come through. The, uh, number will be captured by, voluntarily given by the, uh, user, and then the system will generate through automation a phone call to, first, to the CSRs, to the plumbing company, and then ask them, “Hey, there’s somebody that has just come through Yelp.

Paul Benton: Would you like me to dial them?” And to accomplish that, a human being has to press a button, a pre- uh, in order to gen- initiate the call. That’s a human-driven call, arguably, not a, an AI call. Is that correct? So AI calls human, asks human, “Do you want me to dial the customer?” And human says, “Yes.” And they never- You know-

Paul Benton: hear an AI on the other end. That’s just human to human assisted by AI.

John Henson: So that’s an interesting question. And I’ll give you another example. There was a lawsuit filed earlier this year against a mortgage company that was using an AI voice, okay? Calling, calling customers and saying, “Hey, now’s a great time to refinance.

John Henson: Would you like to talk to somebody?” “Yes.” Immediate transfer to warm, warm, warm human being. And they got sued over the use of AI voice because they didn’t have prior express written consent, right? So that’s a similar scenario, but it is different because the difference you just described is essentially what is also called power or parallel dialing, right?

John Henson: So, like, we’re gonna do a lot of dialing. When some- somebody picks up, we transfer it to a warm pers- a live person. But you’re using AI in this place to make those power dials. I think that you do run into some risk there because you’re going… Not only do you have the AI issue, there’s a possibility that that is gonna be considered an automatic automated telephone dialing system on the f- on the front leg of that, right?

John Henson: So now you’ve got two legs. You’ve got the front leg that’s dialing all the numbers, and then the second leg is the transfer to a live person. So the, the, the reason I brought up that example about the mortgage company is ’cause it’s a very similar situation, right? You’ve got the two legs to that call.

John Henson: You have the AI call that’s definitely there, and then you have the handoff to the warm, the warm live person. So I do think- Well, so- … there is some risk there, and I would li- like, like, again, really wanna understand that process and how it works better before you get comfortable with it.

Paul Benton: So in this case, it, it isn’t multiple dial, multiple dials waiting to connect.

Paul Benton: It is grabbing, it’s the AI calling the office, getting a dedicated person, and then saying, “Would you like to, me to dial this customer for you?” And the person presses yes.

John Henson: So person inbounds to-

Paul Benton: No. So, so person- … whoever … goes to request a quote-

John Henson: Okay …

Paul Benton: through a messaging platform.

John Henson: Okay.

Paul Benton: Voluntarily gives their number and s- and with the expectation of receiving a phone call.

John Henson: Okay.

Paul Benton: Technology loads that phone number up into a dialer, now calls the plumbing company, gets a human being on the phone and says, “There’s somebody waiting to speak to you. Would you like me to dial them for you?” And the plumbing company speaks then directly with a human to the, to the user- Mm-hmm … that came in.

Paul Benton: AI never spoke or made itself known in that chain other than- Yeah … to carry out the dialing the phone just like speed dial would.

John Henson: Yeah. So I think depending on the language on the form, probably, that probably could work, right? Yeah. Because the consumer is raising their hand and saying, “This is the number I need to be called at.

John Henson: I wanna talk to somebody.” And essentially, what I’m hearing you say, then the AI goes out and finds the plumber and says, “Hey, call this person. They’re ready to talk to you,” right?

Paul Benton: Correct. And then it turn- Yeah … and then it, it provides a speed dial convenience to the plumber so that he doesn’t actually- Yep

Paul Benton: have to dial the number.

John Henson: So one of the, one of the things that, that jumps out at me though there is when I say the language, like, I mean that consent language, and kinda goes back to our Lexus and Honda conversation of like- Mm-hmm … does the consumer expect to be called by that person, right? Is, is that cons- is that plumber either the name on the consent language or one of the names on the consent language in a multi-lead scenario, right?

John Henson: So that’s, that is one of the ways you could do that.

Paul Benton: Okay, so that, it does sound like that would pass the test, but the question is where would the consent, where, where is the consent? Because that, part of the challenge of the law is how is a business supposed to get to this consent from a new customer who’s just reached out and contacted them?

Paul Benton: They don’t have any prior contact with them, so where would they have-

John Henson: So it’s, wherever they raised their hand and said, “Call me at this number,” there should be consent language on there, right, saying, “Hey, I know I’m gonna get phone calls at this number by n- phone calls from somebody,” right?

Paul Benton: Okay.

John Henson: And we wanna make sure that somebody lists our plumber.

Paul Benton: Okay. So basically if within the platform message you said something as simply as, “We’re gonna, um, w- w- what number, what’s the best number to reach you on so that we may give you a call?”

John Henson: Yep.

Paul Benton: That would be sufficient con- that would be express written consent

John Henson: It would be express consent for sure. I’m not sure about written.

John Henson: I don’t think it would, would… Again, it depends on what you- Because they- You, you-

Paul Benton: Because they’re messaging in the platform … yeah, you’d have

John Henson: to, you have to… Like, when you look at this, it’s the whole flow, right? So they’re messaging in the platform. What does the platform look like? Does it look like a chatbot?

John Henson: Does it-

Paul Benton: Yes, it’s, it- Yeah. Right … it’s essentially a, a message chat which you’ll find in Yelp, Angie, other places.

John Henson: Yeah. So again, you see on that those chats, right? “Hey, is this the best number to contact you? Is it okay if one of our partners, including Bob’s Plumbing and Electric, call you at this number?”

John Henson: “Yes.” Great.

Paul Benton: Okay.

John Henson: And go from there.

Paul Benton: That’s helpful. Can we shift gears to texting? Because in a standard workflow with, with all this great technology that’s out there, many plumbing companies will have a text back feature that if a ph- if somebody calls in, the call drops, they get a text to say, “Hey, Paul, sorry that you…

Paul Benton: Um, s- s- it’s, uh, John, it’s John’s Plumbing. Sorry that we missed your call. Is there anything that we can do for you? Shall we book a me- shall we book a, a, an appointment for you right here?” The question is, where is the consent given in that chain?

John Henson: Yeah. So consumer has come in, called. You d- didn’t… And this, this is kind of the same scenario we talked about earlier.

John Henson: It depends on where we are on that spectrum. If it’s just a missed call and you immediately text back and you have no other information other than phone number 1234 called you, and you immediately text back 1234, that’s a problem. I don’t love that.

Paul Benton: Where could that consent come from? For example, could it be on the website?

John Henson: It, it would be, you could do get it over voice, right? Because you don’t need marketing consent on that, because I’ve called in for, about some sort of inquiry. I’m just texting you back, “Hey, I saw you called. Somebody will call you about your, about this issue tomorrow,” or whatever, right? So that is, that is a con- I consider that a continuing the transaction call, right?

John Henson: Much like the mortgage person asking for additional paperwork. Here, we’re kinda early on in the transaction, right? But consumer has raised their hand by inbound a call, and hopefully got a voicemail or a message saying, “Hey, thanks for calling. We see you’re at 1234. Is that the be- uh, we’ll call you. We’ll send you a text shortly.”

John Henson: Right? Done. Press… And you sh- it should say, “Press zero to stop.” Assuming that that happens, right, then I think that that’s, that’s perfectly reasonable, depending on how that’s set up. But yeah, I think that is directionally correct. Okay. Um-

Paul Benton: Let’s shift gears if we might. Um, how much sleep should we be losing over this? Can we just take our vendor’s advice? I’m saying this rhetorically. Who, who’s suing whom for how much, and how… What are the stakes here?

John Henson: Yeah, I mean, the issue here, right, is that, uh, TCPA has a private right of action-

Paul Benton: Okay …

John Henson: that turns into class actions.

Paul Benton: So that means- And it can be- … in, in, in, in, uh, lay terms, what is a, what is a right of action- A private right of action- … and what’s a class action? A private right of

John Henson: action, a private right of action means I can sue you, plumbing company, for what you did to me. And in a class action, I can sue you and represent everyone else that looks like me that you did this to, and it’s up to $1,500 per call.

John Henson: And then in some states, you layer other calls on top of that, I mean, other fee, fines on top of that, but let’s just use $1,500 a call, and you’ve made 1,000 calls last week, and that’s 150,000… Excuse me. That’s $1.5 million of risk last week, right? And 1,000 calls on AI voice, that is Not long. That is about a six-hour, could be a six-hour window, right?

John Henson: So it’s got some real teeth to it, uh, and that’s the reason you see a lot of people really concerned about TCPA compliance. Now, this is an area that people think, oh, well, like sure, people do sue, but how many times are there lawsuits? Well, it goes up every year. Like it- for the last two years it’s risen, and I wanna say it’s like in the thousands of times lawsuits now a year.

John Henson: So this is a real risk about this. The other problem that a lot of people don’t recognize is of these thousands of calls, I mean, excuse me, thousands of lawsuits that are filed, about 45% of them, almost half of them, are filed by someone who has filed a TCPA cl- uh, lawsuit before. So these are people that know what they’re doing.

John Henson: They are repeat litigators, right? And it’s like their side job or full-time job to do these lawsuits.

Paul Benton: Yeah, the, in, in a previous era, there were the fax litigants, people who would, um, sue for junk faxes. And then- Yeah … um, I actually got a call from a, as a business, from a junk fax lawyer many years ago asking me, “Could you look through your, um, your junk faxes, and would you be interested in, uh, engaging in litigation?”

Paul Benton: And that’s sort of perhaps the environment today. How many people are actually settling? Do you know in the home service space? Do you have, do you have any anecdotal- Uh- Who’s, who’s pay- who- Yeah … who’s paying money for this, getting caught up in it?

John Henson: Yeah, I think what you’re seeing, I think a lot of these do settle.

John Henson: Um, most of them don’t go to trial. The… So if I, what happens is, right, I, I get a, I get a letter from Paul saying, “Paul’s gonna sue me because I called him six times over the last two weeks. It’s $1,500 a call, but you know, he’s g- he could sue me for $9,000, but I’ll settle right now for six,” right? Or three, right?

John Henson: And you pay $3,000 to make it go away.

Paul Benton: And- How often is that actually happening? How many, do you have a feel for that among your clients?

John Henson: Daily.

Paul Benton: Yeah, no, that’s what I’m asking. I mean- How

John Henson: many- I, yeah, seriously, I mean, I get, I have clients that basically, once, once a week, I get an email from a client saying, “Hey, we had this, we either got this demand letter or we got an email from a customer, or we got an email lawsuit.

John Henson: What do we do?” Right? And that’s, it’s, it’s very routine, very standard. Your big industries on it right now are Financial services is always a big one. Consumer goods is, is, is growing, and then home services is growing as well.

Paul Benton: Okay. J- John, would you tell us a little bit about your practice? How do you help clients?

Paul Benton: Yeah. How do people reach you?

John Henson: Yeah, so I, uh, my practice is somewhat unique in the fact that I don’t do litigation, actually. So, like, if you get a demand letter, I’ll help you with the demand letter. If you get a lawsuit, I refer that out. I don’t like doing litigation, I like compliance. I think the compliance is, it’s more fun because you get to help solve these problems for clients.

John Henson: But I am very active on LinkedIn. You can find me, John Henson, on LinkedIn. I am the bald one. And then you can also find me at henson-legal.com, which I’m sure will have a link in the show notes or something somewhere on this for us. We

Paul Benton: will.

John Henson: And, you know, I help clients, not necessa- I have two buckets of clients, right?

John Henson: So I have my lead generation clients, which are buyers and sellers,

Speaker: right?

John Henson: And/or sellers. And then I have a lot of AI voice platform clients. So these are the, the people that are selling the AI voice products and/or companies that want to use those. And it’s, it’s been a good, been a good practice area. It’s been really interesting, ’cause as you know, Paul, this moves fast and there is a lot going on everywhere.

John Henson: And the fact that you cannot have a conversation right now with anyone who’s trying to grow their business that AI voice does not come up. So i- it’s been really interesting and really fun. Uh, and I’m happy to help any, any of our plumbers or trade guys in that, or gals, in that area and help them understand what’s going on and how they can do this effectively.

Paul Benton: And I will say as, uh, from the marketing corner, your work is essential because as we are building in these technologies, we are not, as marketers, equipped to make legal, give legal advice, and yet the questions are coming up and I’m noticing that the ve- that vendors don’t have an answer and neither do the marketers, and that’s where- Yeah

Speaker: that’s the important role you play. So this has been a great episode, John. We thank you for the great a- advice and insight, and we look forward to seeing everybody on the next episode of the Plumbing Marketing Success podcast