TCPA Compliance Checklist And Guide For SMS Marketing

Disclaimer: Please note that this is not legal advice and is for informational purposes only. It is not intended to substitute for advice from qualified legal counsel, nor is it to assist you or help you be compliant as you assume 100% responsibility in all legal matters.

Businesses are jumping at the opportunity to text their customers – and for a good reason. SMS messages generate a 98% read rate versus just 20% for emails. There’s no better way to reach your customers quickly and effectively than through SMS marketing.

But before you launch your first SMS campaign, you must be familiar with certain federal regulations to avoid getting hit with legal penalties or fines.

The Telephone Consumer Protection Act (TCPA) enforces responsible mobile marketing in the United States. Understanding the TCPA’s ground rules is the first step toward compliant SMS marketing.

The Complete TCPA Compliance Guide:

What Is the TCPA?

Congress enacted the Telephone Consumer Protection Act (TCPA) in 1991 to protect consumers from receiving unsolicited calls or messages. The TCPA is a product of the Federal Communications Commission (FCC), an independent government agency that oversees radio, television and phone activity.

Under the TCPA, all marketing calls, faxes and text messages are subject to government regulation (emails are exempt). More specifically, the TCPA “restricts the making of telemarketing calls and the use of automatic telephone dialing systems and artificial or prerecorded voice messages.”

The fundamental TCPA compliance guidelines for businesses:

  • Obtain consent:
    Businesses cannot call or send messages to consumers without their consent. Companies must obtain explicit written permission from consumers before calling or sending any messages.
  • Provide disclosure:
    Once consumers opt in to receive messages, businesses must disclose the full scope of their SMS communications and also provide a way for consumers to opt out.

Learn more about these rules in the TCPA Compliance Checklist below.

What does the TCPA mean for consumers? The TCPA safeguards consumers’ privacy. Consumers have the right to revoke consent, report any violations or file lawsuits against non-compliant businesses, or submit their phone number to the National Do Not Call Registry.

What happens to businesses that don’t comply with the TCPA? Businesses that don’t obtain consent, don’t disclose their SMS marketing terms or fail to protect consumers’ privacy can incur hefty fines of at least $500 per text.

On top of that, businesses may be subject to harsher penalties, such as million-dollar class-action lawsuits that can hamper a brand’s reputation.

TCPA Compliance Checklist 

A good legal firm can help you develop a TCPA compliance checklist that will cover everything you need to know to send legal and successful SMS marketing campaigns, for example:

  1. Obtain express written consent
  2. Provide disclosure with a comprehensive opt-in message
  3. Clearly communicate terms and conditions
  4. Only communicate during business hours
  5. Include your business name in all messages
  6. Offer consumers a way to opt-out
  7. Respect the National Do Not Call Registry and honor opt-outs 

 Step 1. Obtain Express Written Consent

Businesses must obtain explicit written consent to add customers to a subscription list and send them marketing or promotional communications. The consent must be in a documented and saved format.

Here’s an example of what express written consent for SMS marketing looks like:

  • Online or paper form submissions: A customer provides their mobile phone number via an online form or a paper form. The form’s terms state that that the consumer is subscribing to receive text messages from the company upon submission of the form.
Note: Customers can also check a box if they wish to receive communications from the business. This box cannot be pre-checked. 

  • Keyword texting: Customers text a short code keyword from their mobile device, consenting to join an SMS database. 

Step 2. Provide Disclosure with a Comprehensive Opt-In Message

After a customer grants permission to receive messages from your business, you must follow up with a comprehensive disclosure message.

The opt-in message must cover the terms of your SMS marketing communications, including:

  • Your business name
  • Purpose of messaging
  • Frequency of texts per day, week or month
  • Text message and data rate notices
  • Explicit access to terms and conditions
  • Instructions for requesting help
  • Instructions for opting out

Here’s an opt-in message for SMS marketing:

 [Business Name] Mobile Alerts: Sales, Specials, and News. Approx 6 messages/month. Msg & Data rates may apply. Text STOP to cancel. Text HELP for more information.

Step 3. Clearly Communicate Terms and Conditions

Subscribers should know exactly how to access the terms and conditions of your business’ SMS communications policy.

Plus, customers often forget that they signed up for SMS messages from your business. Sharing your terms and conditions is a smart, compliant way to remind subscribers about your legal text marketing efforts.

Provide a link to the terms and conditions in the initial disclosure text, and periodically remind your customers how to access the policy. You should also notify your subscribers whenever terms and conditions change.

Step 4. Only Communicate During Business Hours

Under the TCPA, businesses cannot text or call subscribers before 8:00 AM or after 9:00 PM. Don’t reach out before or after hours, as this will surely warrant angry complaints.

Step 5. Include Your Business Name in All Messages

You should disclose your business name or sender name in every text message.

Step 6. Offer Consumers a Way to Opt-Out

Per the TCPA, businesses must provide a clear way for subscribers to opt-out of receiving messages.

Consider setting up ‘STOP’ response capabilities, where customers can text the word ‘STOP’ to cease SMS communications with your business.

Make sure to frequently alert subscribers on how to opt-out. You should include ‘STOP’ instructions with every message sent.

Step 7. Respect the National Do Not Call Registry and Honor All Opt-Outs

Businesses must honor the National Do Not Call Registry. Do not text or call anyone on this list – it’s illegal to do so.

Businesses should also keep their own do-not-contact list to respect the privacy of consumers who do not wish to hear from the business but are not on the national registry.

Likewise, honor all opt-outs. TCPA exists because businesses need to respect consumers’ privacy.

FYI: After someone opts out, think about sending one more message to confirm the opt-out was successful.

TCPA Exceptions

The TCPA applies to marketing and advertising messages, as well as autodialed or pre-recorded phone calls. However, certain informational messages are exempt from these regulations and do not require express consent or opt-out instructions.

Here are some examples of TCPA exceptions:

  • Financial institutions can send account updates or security updates
  • Healthcare providers can send appointment confirmations, reminders, pre or post-operative instructions or lab results
  • Pharmacies can send prescription notifications
  • Utility companies can send updates on services, outages or upgrades
  • Schools can send updates about closures, health risks or unexcused absences

Essentially, non-commercial messages and urgent or emergency updates are exempt from the TCPA. But marketing messages that promote or sell a product or service must follow TCPA regulations.

Best Practices for Ensuring TCPA Compliance

Business owners should adopt the right approach to ensure all individuals in their organization understand TCPA guidelines.

Here are a few best practices to get your team up to speed on all things TCPA.

Educate your employees
Create a clear-cut company policy that details all rules and procedures for sending mobile marketing messages in accordance with the TCPA. Add this policy to the employee handbook and make it accessible for your marketing and advertising team.

Schedule routine compliance training
Federal regulations can change or amend over time. Consider scheduling yearly compliance training sessions with your team if SMS campaigns are a significant part of your marketing efforts.

The TCPA requires that you inform subscribers if you update your terms and conditions, so be sure to do the same with your employees.

Review past lawsuits to understand TCPA violations
It’s helpful to look at past class-action lawsuits to grasp the consequences businesses can face if they don’t abide by the TCPA. Remember, businesses can incur a $500 minimum penalty per text message sent that violates the TCPA.

You might recall one of the largest TCPA settlements to date, involving Capital One. In 2014, the financial corporation owed $75.5 million after using automated dialers to contact consumers’ mobile phones without consent.

In 2013, fashion brand Steve Madden paid $10 million for sending over 200,000 text messages through a third-party vendor without getting consent from consumers.

And most recently, following a seven-year lawsuit, several Florida Pizza Hut franchises finally settled for $6 million. These locations combined sent over 13,000 unsolicited promotional text messages to consumers without their consent.

Stay TCPA Compliant

TCPA compliance is easy when you’re working with the right, reliable text marketing service. 

Textedly helps organizations of all sizes send powerful, custom and TCPA-compliant mobile messages to customers. Maintain easy and efficient communication with your contacts, and reach new levels of customer loyalty and satisfaction.

Learn more and start your free 14-day trial of Textedly today!

Disclaimer: Please note that our advice in this article for informational purposes only. It is not intended to substitute for advice from qualified legal counsel.

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TCPA Violations