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The convenience of text messages makes SMS marketing a popular option for telemarketers. With approximately 67% of people preferring to text, no wonder SMS messages are effective when it comes to marketing. However, if you fail to comply with the Telephone Consumer Protection Act it can be a significant liability for your business.
In the highly competitive market, virtually all industries rely on text messages to reach customers and build loyalty. The Telephone Consumer Protection Act, TCPA, regulates the voice calls and text messages a business can make to consumers. In this complete guide, you will learn everything you need to know to comply with the TCPA guidelines.
What is TCPA and What Does It Stand For?
TCPA is the acronym for the Telephone Consumer Protection Act. The act came into effect in 1991 and has since changed to address SMS messaging together with voice calls. This act dictates that organizations and businesses must get prior express written consent from customers before sending automated marketing text messages.
TCPA indicates that getting a person's phone contact regardless of whether the individual is an existing client, potential lead, or a former customer does not mean you have permission to contact them. That said, there are some types of text campaigns that are exempt under TCPA. These include appointment confirmation messages and delivery notifications.
The penalties for violating TCPA are steep. Therefore, as you send your marketing messages, you should always be cautious and make sure you have prior express consent. This applies even when you feel your text messages are transactional.
TCPA gives your customers the right to act, including suing you, the text message sender. If you fail to adhere to the Telephone Consumer Protection Act, you may have to pay damages varying from $500 to $1,500 per text message. Besides, to reduce abusive telecommunication practices and protect consumer privacy, FCC and FTC can also sue your business for violating TCPA rules.
TCPA Compliance for Text Messages and SMS
The best way you can be sure your contact list for text messages adheres to the criteria for written consent is to consult your legal counsel. That said, to comply with TCPA guidelines, your business should also provide consumers with a reasonable method to opt-out. Even though a customer may provide consent, they reserve the right to opt out of text marketing from the sender.
Federal Communications Commission Public Notice on TCPA
In 2016, the Federal Communications Commission issued a public notice indicating the limits of using auto-dialed text messages, also commonly known as "robotext." FCC focuses on protecting consumers from intrusive, harassing, unwanted, and illegal robotexts on mobile phones. In this notice, FCC acknowledges that the restrictions apply to both voice calls and SMS marketing.
Therefore, any text messaging website capable of automatically sending text messages to cell phones is subject to the 1991 TCPA. That is to say, the term autodialer includes every equipment or tool capable of storing or generating numbers and dialing them without human intervention. For more details, check the Federal Communications Commission public notice.
What Types of Text Messages Violate the TCPA?
TCPA guidelines prohibit businesses from using an automatic telephone dialing system unless the customer provides express written consent. These are also known as robocalls and occur as a result of a computer automatically dialing a number instead of a human. Generating phone numbers and sending messages to customers using robocalls is strictly prohibited. Also, the use of automated dialing efforts meant to dupe customers and keep them on the phone violates TCPA.
In 2015, FCC released the TCPA Declaratory Ruling and Order that allows telephone service providers to block robocalls targeting consumers. This order has been useful in defining a handful of terms in TCPA and clarifying restrictions on telemarketers and the rights of consumers. Below are certain types of messages that violate TCPA besides using an automatic telephone dialing system.
Few things are as annoying as finding unsolicited text messages in your inbox. If your business sends text messages to consumers without their permission, it is a violation of TCPA. All communication between your business and consumers must occur after your clients provide express consent.
Sometimes, customers may sign up for business notifications through text messages. In such cases, your business has to share a confirmation message containing TCPA-mandated disclosures with the customer for automatic subscription to a text message.
TCPA - Do Not Call Registry
In 2003, the FCC and FTC crafted the national "Do Not Call" registry for consumers. By including their phone numbers in this registry, consumers express their desire not to get telemarketing calls. Not complying with the registry means a violation of the TCPA. However, using SMS for non-profit organizations is excluded from the registry.
Sending messages requiring a descrambler to make the text readable is in direct violation of the TCPA. What's more, sending incomprehensible or unintelligible audio also violates the TCPA guidelines.
Restriction for Residential Numbers
In 2012, FCC revised TCPA to make sure businesses no longer rely on an established business relationship as consent for getting in touch with customers using listed residential phone numbers. As a result, businesses now have to request permission from consumers to use their contacts for phone calls and SMS messaging.
TCPA Compliance Checklist
TCPA highlights several violations and provides a guide for businesses on how they can send text messages to consumers. To accomplish this, take note of the following compliance checklist associated with TCPA.
- When sending conversational text messages a business needs implied consent
- To share informational and promotional messages, your business requires express consent from your consumers
- For authenticity, use a business messaging service with 10-digit long codes or 10 DLC messaging support
- Provide easy an opt-out option. For example, you can let customers opt out by texting a single keyword like, "STOP"
- List your message frequency, business name, and applicable rates when consumers opt-in
Here are the things you should avoid:
- Purchasing third-party contacts that have not opted in
- Using spammy technology such as shortcodes, recordings, or artificial voices
- Texting or calling before 8 am or after 9 pm
- Calling or texting anyone in the National Do Not Call Registry
- Sending messages on alcohol to non-age-verified contacts
- Sending graphic, confidential, violent, or hateful messages
Also, make sure you are up to date when it comes to messaging regulations. Please note that this advice is purely for informational purposes. As a business, you should always seek specific legal advice from professionals.
Best Practices for Ensuring TCPA Compliance
As you run your business, there are various critical things you need to know when it comes to complying with TCPA before you can start making phone calls or sending messages. Even though no compliance program can make your use of text messages 100% risk-free from lawsuits, below are the best practices. These will help lower the risk and even may make it easy to obtain an early TCPA lawsuit settlement.
Evaluate Your Practices for Getting Express Written Consent
Consent comes in three forms, implied, express, and express written, depending on the type of conversation you wish to have with your customers. You should have TCPA text messages consent from your consumers. Implied consent is an inferred or casual permission to send a text while express consent refers to formal permission.
When a contact is the first to get in touch with you, then it is reasonable to think that you have implied permission to send texts to the contact but only to respond to their messages. Express consent in TCPA is a written or oral agreement to show consent that your clients accept receiving text messages.
In the Telephone Consumer Protection Act, express written consent from contact can either be electronic or paper. This form of consent is important if you seek to send promotional or marketing messages. In case you have doubts about your practice satisfying the standards for written consent, you should seek advice from an attorney.
In case you lack proper written consent from certain telephone numbers, then you need to put those contacts in your "Do Not Contact" list. Users providing their phone numbers through your online form does not mean you have their prior express written consent.
Have Written Procedures and Policies in Place
As you use text message marketing, you should always review your TCPA text messaging policies to make sure they are up to date with the latest developments in the law. As indicated earlier, if you do not have written policies and procedures, you should seek advice from an attorney.
Whenever you have adequate procedures and policies, you should incorporate them into your employee training. This provides a way of ensuring you have an effective compliance program. It can also act as a plausible defense in case a claim arises about a violation of applicable state law.
The only way you can show that you comply with TCPA is through records. So, regardless of the confidence you may have in terms of compliance with federal law, keeping records is paramount. Make sure you have records proving that your clients permit you to include each phone number in your text message marketing campaigns. When you have complete records, it becomes easier to deal with potential TCPA cases.
Make Sure your Vendor is Compliant
This is important. If you are using a third-party vendor to send marketing messages, don't assume the vendors comply with TCPA. The best way you can establish if the vendor complies with TCPA is to have an attorney review the terms and conditions of the vendor.
Review Carrier Requirements
This will require you to confirm if you are adhering to the carrier requirements. For instance, some carriers do not allow cannabis-related content. Therefore, the carriers may filter text messages that contain specific cannabis-related keywords.
Penalties for TCPA Violations
Harassing and spam text messages are not only annoying but also illegal and violate TCPA guidelines. If your business ignores TCPA guidelines when carrying out SMS marketing, the fines will vary between $500 and $1,500 per text.
What are the text messaging laws in the United States?
TCPA dictates the federal laws that you must abide by as a business or organization. Some businesses do not know that TCPA also applies to text. TCPA places the same restrictions and regulations on text messages as telemarketing calls.
What consent is required for text messages under the TCPA?
Implied, express, and express written consumer consent is necessary before a business starts sending text messages to a user's mobile phone. As a business, the burden of proof will always be on you to prove that you have express consent from consumers.
Do TCPA regulations apply to text messages?
Yes. TCPA regulations encompass text messages and prohibit automatic text messages and phone calls unless the client has prior consent from the party.
Is there a TCPA compliance checklist texting guide?
Of course. And it dictates that you need to have signed consent, keep messages conversational, use texting platforms with 10-digit long codes (DLC), include clear call-to-actions, privacy policies, and terms of service, support easy opt-out options, and keep records of those who opt-in and out.