What Does the TCPA Have to Say about SMS Marketing?
In this article, we answer an important question that many people ask us: Does the Telephone Consumer Protection Act (TCPA) apply to SMS marketing?
It is understandable that a lot of people ask us this question, because the TCPA federal law does not mention SMS or text messages at all. This obviously causes some confusion among mobile marketers who run or want to start text messaging campaigns for their brands.
Before we dive further into this confusion, let us first clarify what the TCPA does mentions. In short, the TCPA refers to faxes and calls. But if it only mentions those means of communication, then why does it apply to SMS marketing you might ask?
Why Does the TCPA Apply to Text Message Marketing?
The answer is that courts and the Federal Communications Commission (FCC) now also apply the original United States Congress’ TCPA phone call reference to SMS messages.
The reason that Congress has not made a standalone reference to text messaging is because the TCPA became law in 1991. Back then, text messages were non-existent.
SMS technology was already in development, but Congress was unware of that development at the time. The first commercial SMS was sent two years later in 1993.
Nonetheless, text messages are now synonymous to phone calls. An SMS message is without question a phone call, and a phone call is an SMS message. Therefore, it is important for brands to know that their mobile messaging campaigns can trigger TCPA problems if they violate the law.
Even though this is now pretty clear, it still causes a lot of confusion for marketers, and not only because the TCPA makes no mention of text messages.
A Second Cause of Confusion
A second thing that confuses marketers has to do with the modern technological tools that brands need to use in order to send mobile messages. Now, with text message marketing software providers, brands won’t even touch an actual phone even more in order to send out messages to consumers.
Originally, the TCPA came into existence to prevent predictive dialing practices. Phone devices would sequentially generate phone calls, and they would continue to do so until someone came on the line. This is an annoying practice and it actually against the law. Luckily, the TCPA now prevents such practices.
Here is where it gets confusing for marketers though. A SMS software platform like Tatango draws no similarities with a smartphone or a predictive dialing system.
That is why mobile marketers often treat it the same way as an e-mail marketing platform. They feel like they are communication with consumers the same way as that they do wilt email. They ask themselves the question: Why am I bound to the TCPA if I am not even using an actual telephone for my mobile marketing practices?
Why Courts and the FCC See SMS Software Platforms as Auto-Dialers
As a marketer who uses SMS software, you have a list of phone numbers, which are hopefully given to you with the consent of their owners. You use that list of phone numbers to send messages via a modern computer system.
However, the FCC’s expansive auto-dialer definition makes it pretty clear that, unless you are making use of an old-fashioned rotary phone, you need to be aware that, in many cases, courts file SMS software platforms in the category of auto-dialer systems.
We say in many cases and not in all cases, because courts and the FFC do certain tests in order to determine the level of effect that human intervention has when it comes to preventing certain technological systems from being auto-dialers.
Keep It Simple to Avoid Problems and Confusions
It is possible to create certain systems that will not be seen as ATDS (Automatic Telephone Dialing Systems). However, it is always saver to keep it simple and to assume that you are working with an auto-dialer system when doing SMS marketing.
To help keep it simple and to avoid any confusions, it would perhaps be better to refresh the TCPA and change the term auto-dialing system into auto-texting system for SMS marketers and their brands.
After all, most companies really want to be compliant with the Telephone Consumer Protection Act, and they do not want to end up in court because of miscommunications and misunderstandings.
How the Courts Look at Ambiguous FCC Definitions
Brands are not the only ones that struggle with TCPA rules. Courts also have to cope with expansive definitions that the FFC applies to key terms like for example auto-dialer systems. They notice how brands toil with being TCPA compliant, and they like to apply reasonable limits to the ambiguous FCC standards.
However, there are also courts that emphasize the democratic process, and therefore want to leave it up to the United States Congress to make any rule changes. They enforce the laws, but it is up to Congress and the FCC to create and change them.
With the TCPA waters oftentimes being murky it is best to keep one thing in mind, and that is to keep things simple and on the safe side. The TCPA does apply to text message marketing, even though it does not mention it.
Reach out to Us If You Have Any TCPA Related Questions
If after reading this article you still have questions regarding the Telephone Consumer Protection Act and the term auto-dialer, or if you want to discuss general text message marketing questions, then don’t hesitate to get in touch with us via this contact form.
Furthermore, we also like to point you to this Tatango YouTube playlist, which consists of TCPA education videos that can further help you to get a better understanding of text message marketing laws.