Rules for SMS Marketing: Understanding the TCPA

In this article, we discuss the TCPA (Telephone Consumer Protection Act). Read on to learn more about this important federal law that applies to text message marketing.

Adoption of the TCPA by the United States Congress took place in 1991. The TCPA is a set of FFC (Federal Communications Commission) implemented rules and regulations.

It governs robocalling, telemarketing and mobile (text) messaging issues, and it outlines requirements for brands and other organizations in the USA that use these technologies to communicate with consumers.

Brands can communicate with consumers by sending them marketing messages, but messages can also be informal such as for example package or healthcare alerts.

TCPA federal law rules and regulations therefore vary, as they depend on the type of message that an organization or brand sends out to citizens of the United States.


Changes and Modifications to the TCPA

Over the years, there have also been changes and modifications when it comes to certain rules and regulations of the TCPA. These changes and modifications need to take place, because technology is constantly advancing.

In the year 1991, there was no widespread use of mobile phones, and SMS didn’t even exist yet. Because of these technological advancements in the mobile messaging industry and other communication fields, the FCC constantly needs to keep an eye on how they apply to the TCPA, and on the expectations from consumers.

At its core, the TCPA tries to find a balance between the privacy of consumers and the commercial speech of brands that want to reach out to those consumers.

This balance is important as the TCPA ultimately came into existence because people got fed up with all the companies that were calling them on their landlines during dinner time. For that same reason, a “Do Not Call List” was also set up.

Nowadays, more calls are made via mobile phones than landlines. The FFC therefore had to look for ways to “update” the TCPA. It now also needs to apply to mobile phone call and text messaging practices from brands.


The Importance of Understanding TCPA Requirements

For brands, it is very important to know how the TCPA federal law applies to their communication practices. They have to understand the rules, and they have to know what happens when they violate those rules as the penalties for doing so are severe.

When brands send text messages to consumers who have not given their consent to receive them, they can end up having to pay minimum statutory fines of $500 per SMS message. If a willful violation of the TCPA law occurs, then a plaintiff is able to demand as much as $1,500 per message.

Things get even worse for brands when plaintiffs come together and file a TCPA class action lawsuit against them. Then the fine of $500 to $1500 has to be paid to every class action lawsuit plaintiff.

This can turn out to be catastrophic for brands, because they might suddenly look at lawsuits that are going to cost them millions of dollars.

In order to avoid costly lawsuits, brands have to be very aware of the TCPA rules, but that doesn’t always proves to be easy. Simply reading the 1991 version of the law isn’t enough.

As mentioned above, the law is constantly evolving, which makes it difficult for brands to stay up-to-date about all the latest changes. Also, brands can misinterpreted requirement or obligation details, or they just don’t like to read through long and tedious sections of the law.


Phone Calls Are the Same as Text Messages

The original version of the TCPA from 1991 obviously did not mention text messaging as that technology did not exist back then. However text messaging now applies to the TCPA, because the FCC eventually came up with the solution to interpret a message as a call.

As a result, phone calls and text messages are now equivalent to each other according to the TCPA. This is a great example of a necessary interpretation from the TCPA.

That interpretation had to take place, because the United States Congress did not think about SMS when the TCPA was written in 1991.


Given Consent Is a TCPA Requirement

A majority of SMS messages fall into the categories of marketing and sales, and many organizations that send them want to know how they can remain compliant with the current TCPA rules.

The most important factor that these organizations need to focus on is making sure that they receive an appropriate level of consent from consumers before they begin to text them.

Written consent is a requirement, and there are many ways to obtain it. One might think that written consent means literary having to sign a piece of paper, but a digital consent, such as, for example, opting in by texting a keyword to a short code, or filling in an online web form, also count. The TCPA makes it very clear that those are valid options to give and receive consent.

Whatever method brands use, they always need to be able to provide prove of given consent. With every method of obtaining consent from a consumer, it is important that businesses are able to provide prove of the given consent.

They need to keep a record of their consent history, and they need to have a proper method in place for producing such a record when the TCPA challenges them to show it.

So consent is a key for being TCPA compliant, and it is vital that brands receive that consent before they start sending out text messages to consumers. They cannot just purchase any phone numbers and send messages to those phone numbers to ask for consent.

It is not like the old days, when companies bought email lists with the intention to send messages to people in the hope they would not care.

Congress and the FCC worry about the fact that consumers get unwanted and annoying text messages, so they want to be absolutely sure that text messages only reach people that have said “Yes, you have my permission to send me marketing related text messages”.

Ideally, consumers also need to be aware of how frequently they are going to receive SMS messages, and what kind of content those messages are going to contain.


The Protection of Consumers Is a Vital Concern

The primary driver of these rules and regulations is to protect consumers. They value their privacy and do not want unwanted intrusions in their lives.

Businesses can really get in trouble when they do not pay attention to those things and do not stay up-to-date with the TCPA.

It is a delicate balance between consumers and brands. Consumers need to be protected, and companies need to be able to reach their customers via text messages.


Consent Is Not a Condition of Purchase

When consumers subscribe to a text message marketing campaign, they will often come across the term “consent is not a condition of purchase”. This term is another example of an FCC interpretation of the TCPA law.

It was not a requirement from the USA Congress when the TCPA became law in 1991, but it became a requirement from the FCC in later years. This is a good example of why brands always need to be aware of changes that are made to the TCPA.

“Consent is not a condition of purchase” means that brands have to explain to consumers that they do not need to give their consent before they can buy any goods or services. The FCC set up this requirement because it had the concern that lengthy sales contract documents would also make people unwillingly subscribe to text message marketing campaigns.

Brands cannot force consumers to give up their privacy when they make a purchase. They always need to be able to make a purchase without having to subscribe to an SMS campaign.

If they can only sign a sales contract when they also need to subscribe to receive messages, and when that requirement is somewhere hidden in the document, then they are not voluntarily giving their consent.


Text Message Marketing Is Always a Team Effort

Brands, and especially those that are new to text messaging, need to avoid mistakes when it comes to SMS marketing, and the best way they can do that is by working closely with professionals who understand the industry and its landscape.

The TCPA is a part of that landscape, and so are the mobile carriers and the CTIA (an organization that provides best practice guidelines for text message marketing).

Covering all these different areas can be challenging for brands, so they need to bring in experts who can provide guidance.

Text message marketing is really a team effort in which different types of experts, such as TCPA attorneys, corporate counselors, and SMS providers, need to come together to provide a legal and consumer friendly end experience for brands and their customers.


Let Tatango Help You Set up a TCPA Compliant SMS Marketing Campaign

Are you ready to start your own SMS campaign and set up a team of experts who can guide you along the way? Get in contact with our sales and support team today, and let us help you create your first TCPA compliant text message marketing campaign.

For more information on TCPA compliance for text message marketing, also check out this video playlist on the Tatango YouTube channel.

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