The Telephone Consumer Protection Act (TCPA) is a set of Federal Communications Commission (FFC) regulations governing robo-calling, telemarketing and mobile text messaging. The TCPA outlines requirements for brands and other organizations in the United States that use these technologies to communicate with consumers. The United States Congress adopted the TCPA in 1991.
TCPA federal law rules and regulations vary—they depend on the type of message that an organization sends out to citizens of the United States. Text messages, for example, operate on a strict set of rules regarding consent and compliance.
The primary goal of these regulations is to protect consumers. Consumers do not want unsolicited intrusions into their lives; they value their privacy. Brands must balance respecting privacy and adding value. Many consumers ask to be messaged by their favorite brands to benefit from coupons, deals, and special promotions, but brands can get in trouble if they ignore TCPA guidelines.
Changes and Modifications
The TCPA has been forced to adapt over the years, as all regulations must. In 1991, SMS messaging didn’t even exist, but today mobile phones are used more than landlines. The FFC has had to look for ways to update the TCPA to make it apply to modern technology. Text messaging is covered by the TCPA because the FCC interprets a text message as a phone call. As a result, phone calls and text messages are now equivalent, according to the TCPA.
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. Because of the technological advancements in the mobile messaging industry, the FCC has constantly updated and revised the TCPA to try and keep up with the needs and expectations of consumers.
Understanding TCPA Requirements
Brands need to know how these regulations apply to their campaigns. They have to understand the rules, and the consequences for violating those rules; the penalties for violations are severe.
When brands send text messages to consumers who have not given their consent to receive those messages, brands can end up having to pay minimum statutory fines of $500 per SMS message. If this violation is considered or proven willful, then a plaintiff can demand as much as $1,500 per message. Plaintiffs can also come together and file a TCPA class-action lawsuit. In those cases, each individual fine has to be paid to every class-action lawsuit plaintiff. This can snowball small fines into multi-million-dollar payouts.
In order to avoid costly lawsuits, brands have to be aware of the TCPA rules, which isn’t easy. Simply reading the 1991 version of the law isn’t enough. The law is constantly evolving, which makes it difficult for brands to stay up-to-date about all the latest changes. We’ll break down a few key parts of the law below, but make sure you check out our free TCPA survival guide for more info.
Given Consent Is a TCPA Requirement
To avoid punishment, brands need to acquire an appropriate level of consent from consumers before texting them; specifically “express prior written consent“. There are many ways to obtain it. This does not require a physically signed legal document; digital consent, such as opting in by texting a keyword to a short code, or filling in an online web form, also counts.
Whatever method brands use, they always need proof of consent. They need to keep a record of their consent history, and be able to produce that record when the TCPA challenges them to show it. Ideally, consumers also need to be aware of how frequently they will receive SMS messages, and what content those messages will contain.
Consent Is Not a Condition of Purchase
When consumers subscribe to a text message marketing campaign, they will often encounter the term “consent is not a condition of purchase.” This means that consumers do not need to give their consent to be texted before they can buy any goods or services. The FCC requires this due to the concern that lengthy sales contract documents would make people unwillingly subscribe to text message marketing campaigns. Coerced consent is not valid consent.
Brands cannot force consumers to give up their privacy when they make a purchase. They should always be able to make a purchase without subscribing to an SMS campaign. When the requirement to give consent is buried somewhere in a sales document, then they are not voluntarily giving their consent.
Text Message Marketing Is a Team Effort
Brands need to avoid mistakes with SMS marketing; the best way to do that is by working 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 Cellular Telecommunications Industry Association (CTIA), an organization that provides best-practice guidelines for text message marketing.
Text message marketing is a team effort with experts in varying fields, such as TCPA attorneys, corporate counselors, and SMS providers, coming together to provide a legal and consumer-friendly 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 with a team of experts to guide you? 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 TCPA video playlist on the Tatango YouTube channel.