Essential Things You Should Know About SMS Compliance
Before starting any text messaging campaign, you must familiarize yourself with SMS compliance and text message laws and regulations. Failure to comply with SMS compliance and text messaging laws may not only affect your customer’s experience but could also put your business at risk of legal action.
Disclaimer:
Please note that this advice is for informational purposes only and is neither intended nor should be substituted for consultation with appropriate legal counsel or your organization’s regulatory compliance team.
Who Regulates Text Messaging?
Before delving into compliance laws and regulations, it is essential to understand the regulating bodies and legislation involved:
CTIA
This stands for the Cellular Telecommunications Industry Association and Compliance. The association outlines the best practices for SMS, multimedia messaging services (MMS), and free-to-end users (FTEU) short code program.
FCC
An acronym for Federal Communications Commission, the FCC is an independent U.S government agency overseen by Congress that is responsible for implementing and enforcing America’s communications law and regulations.
FTC
The Federal Trade Commission is the body which actually operates the Federal do-not-call registry.
TCPA
This stands for the Telephone Consumer Protection Act which Congress passed in 1991 to protect consumers from unwanted telemarketing calls and texts.
Where We Are Now
To address the growing number of telephone marketing calls, the U.S revised three main TCPA rules in 2012 that required telemarketers to do the following:
- Obtain prior express written consent from consumers before robocalling them
- No longer allow marketers to use ‘established business relationship’ to avoid getting permission from consumers to call them
- Implement an automated, interactive ‘opt-out’ mechanism for all robocalls
Let’s get to it. Here’s a list of the most important things you should know about SMS compliance.
Express Written Consent
The Telephone Consumer Protection Act (TCPA) demands that customers give a business ‘express written consent’ before sending them text messages.
TIP
You can’t bury the written consent in pages full of legalese. You should display it prominently just under your CTA in simple, straightforward language so that a recipient knows what they’re signing up for.
Ways to get Express Written Consent from consumers:
- A Keyword or phrase is sent to a business SMS shortcode
- Consumers enter a phone number into an online web form
- Consumers sign-up in person by filling a physical form at a physical location
You’ll be required to provide consumers with your terms and conditions for all the above ways.
TIP
You’re not allowed to require a user to opt into your text program as a condition to purchase property, goods, or services.
Compliance When Importing Contacts
Express written consent isn’t just for new contacts but all contacts, even those you import into your SMS messaging platform or CRM. Ensure that each subscriber in your contact list has provided their consent to send them messages.
Call-to-Action (CTA) Requirements
A call-to-action is the message that prompts an individual to opt-in to your SMS campaign. Here’s a couple of things it consists of and how to stay compliant when implementing in your SMS campaigns:
Automated Marketing Messages
Among the FCC rules for ‘express written consent’, consumers must provide their consent to receive automated marketing message, so be sure to make that clear in your CTA. As mentioned above, advise your subscribers they don’t have to agree to receive the SMS texts as a condition of them buying anything from you.
Provide Clarity on Your SMS Campaign Purpose
Let your subscribers know what they’re signing up for, and make sure to deliver on your promises to them. This is important so that there aren’t any surprises or misunderstandings down the road.
Sending Frequency
Provide clarity on the number of messages they expect to receive and the duration. It could be a one-time message like a coupon, or a series of recurring messages; weekly or monthly, etc.
You might not know the exact number of messages you’ll be sending over a specific length of time, but giving an approximation could be helpful.
Message and Data Rates
Sometimes you may want to charge people who choose to subscribe to your SMS campaign to cover the expenses of running the campaign.
There isn’t anything wrong with charging subscribers. However, you need to inform your subscribers that they’ll be charged if they sign up for your SMS campaign.
Terms, Conditions, Privacy Policy
List all of your campaign terms and conditions beneath the CTA or provide a link that contains this information, especially for your company’s privacy policy. This list should include the following:
- Identity of your company, brand, or SMS campaign
- Contact details of your customer care center
- A comprehensive description of the product or service people are signing up for
- Opt-out instructions in bold type. For example reply STOP to unsubscribe
Confirmation Message
Your very first text must be a carrier compliance message confirming opt-in. It should reiterate some of the information we had discussed earlier, which includes:
- Message frequency
- Data rates if any
- Your company Identity
- How to opt-out
What You Can’t Text — SHAFT
The CTIA sets rules and best practices for the text marketing industry, and among those rules is one commonly referred to as SHAFT — sex, hate, alcohol, firearms, and tobacco. You’ll be considered to have violated the CTIA rules if you write content based on any of these topics in your CTA or messages, and this may result in an immediate ban.
There are a few exceptions to this rule:
Scenario 1
You’re operating a bar that may require you to send SMS messages about happy hour specials on certain alcoholic beverages.
Scenario 2
You own a firearms store, and you just received a batch of the latest hunting rifles, and you get to send out a blast SMS message to your registered customers informing them of your new merchandise.
TIP
If you plan to send texts about alcohol or tobacco, check with our support team first, and we shall help you ensure you’re remaining compliant.
Penalties for Violating the TCPA
Violating TCPA regulations can lead to hefty statutory damages and fines starting from $500 per valuation and up to $1,500 per willful violation. Both the FTC and FCC have the authority to bring lawsuits on behalf of citizens.
Here’s a couple of businesses that had lawsuits brought against them for violating TCPA regulations:
Dish Network
Sometime in 2017, Dish Network paid approximately $210 million in damages for violating the TCPA. Members of the class-action lawsuit had alleged that Dish Networks had knowingly made at least 65 million illegal calls to U.S consumers, according to the lawsuit.
Dish Network argued that its telemarketing provider Satellite System Network was at fault, but the jury rejected this argument and awarded the plaintiffs $400 per call. Click here to learn more about the Dish Network TCPA lawsuit.
Domino’s Pizza
Domino’s Pizza once violated a TCPA regulation and had to cough out nearly $10 million to settle a class-action lawsuit. The court found that Domino’s had made unsolicited marketing calls to people.
Click here to learn more about Domino’s Pizza TCPA lawsuit.
Jiffy Lube
This case was fascinating, as Jiffy Lube violated TCPA regulations during a process designed to make them TCPA compliant. Jiffy Lube, an express mechanic, was found to have violated TCPA regulations and paid a $47 million settlement for sending just one text message to 2.3 million customers asking for their consent.
Click here to learn more about the Jiffy Lube TCPA lawsuit.
Key Points:
- Always make sure that all your subscribers have given prior express written consent to receive SMS messages from you.
- Your terms and conditions should be visible and include a clause that explicitly states that their agreement to receive a message isn’t conditioned on any purchase
- Fines for violating TCPA regulations generally range from $500 — $1,500 per violation
- Unsolicited calls or texts quality as TCPA violations
MessagePost SMS solutions are compliant and strive to protect you and your partners from potential lawsuits. It also offers branded SMS messaging solutions that allow you to brand your SMS messages with your company name, logo, tagline, and banner image.
