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In the video above, Tatango CEO Derek Johnson and TCPA attorney David Carter explain an important upcoming FCC ruling. So far, text messages have lived in a legal grey area between phone calls and emails. The FCC has released a draft order that brings a clearer definition to this issue, and it could have a significant impact on the future of SMS marketing. If you prefer to read, see the post below.
What Big Decision Is the FCC Facing?
The world of text message marketing is governed by the Telephone Consumer Protection Act (TCPA), which requires consumers to opt in to any SMS campaigns before a brand can send them text messages. Brands who send unsolicited texts can receive fines of up to $1500 per customer.
The Federal Communication Commission (FCC) interprets and enacts the TCPA. Historically, the FCC has split modern communication methods into two groups: informational services and telecommunication services. Informational services, such as email, are not as heavily regulated as phone calls, which are categorized as a telecommunication service. While carriers, like T-Mobile and AT&T, can’t block phone calls, they can intercept or filter informational services.
Where do SMS messages sit along this spectrum? This question has been brought before the FCC as early as 2007. Until now, carriers have used this grey area to create their own rules around text message marketing. Now, the FCC is releasing a draft order to set clearer definitions once and for all.
Will Carriers Be Able to Block SMS Marketing?
The FCC has published a draft version of the order on which they’ll soon vote, and it shows that SMS messages will be defined as an informational service, similar to email. Within the text message marketing industry, there has been significant anxiety about the future of blocking or filtering messages due to this shift. FCC orders tend to be broad statements rather than specific rulings addressing all edge-case situations. Due to the vague nature of this FCC order, it’s easy to see why some brands are worried.
In reality, carriers have already been blocking and filtering spam text messages for years. Since the FCC has delayed defining the text message’s legal standing, carriers have effectively treated SMS messages as informational services. In general, if a brand’s texts have been going through, they won’t be blocked after this order. This order shows how the FCC is trying to preserve the status quo as much as possible. If SMS messages were legally equated to phone calls, carriers would not be able to block any spam—this could hurt the entire industry since customers would be frustrated, and spam would drown out legitimate marketing messages.
What Happens Now?
Some fringe cases could see an effect of this new order—especially those in which text message marketing is used for hotly debated topics or political messaging, such as campaign texts or cannabis marketing, for instance. This order is intended to be broad, with room for future adjustments. Instead of an FCC order that has an answer for every variable, we may have to rely on free-market forces in the future to settle rare cases.
While this FCC ruling may seem like a massive change, it appears to focus more on preserving balance rather than upsetting it. As always, we recommend consulting with TCPA attorneys and referring to TCPA resources to help guide you and your brand on the path to effective—and legal—SMS marketing.
Work with Tatango on TCPA Requirements
Tatango has been an industry leader for more than 13 years. The tools and features in our text message marketing platform help simplify TCPA compliance. Contact one of our SMS marketing experts to learn more today.