The Telephone Consumer Protection Act (TCPA) is a set of Federal Communications Commission (FFC) rules and regulations that govern robocalling, telemarketing, and mobile text messaging issues. The Telephone Consumer Protection Act 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 Telephone Consumer Protection Act in 1991.
Telephone Consumer Protection Act federal law rules and regulations vary, as 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 Protection of Consumers
The primary driver of these rules and regulations is to protect consumers. Consumers value their privacy, and understandably do not want unsolicited intrusions into their lives. Brands must walk the delicate balance between respecting privacy and adding value. There are many consumers who ask to be messaged by their favorite brands to benefit from coupons, deals, and special promotions. However, brands can get in trouble when they ignore Telephone Consumer Protection Act guidelines and disrupt consumer privacy.
Changes and Modifications to the Telephone Consumer Protection Act
The Telephone Consumer Protection Act has been forced to adapt over the years, due to the ever-increasing speed of technological development.
For example, in 1991, there was no widespread use of mobile phones, and SMS messaging didn’t even exist. The Telephone Consumer Protection Act first arose from disgruntled consumers who were tired of getting interrupted by phone calls during dinnertime. The Do Not Call List was a direct response to this common complaint.
Today, more calls are made via mobile phones than landlines. The FFC has had to look for ways to update the Telephone Consumer Protection Act to make it apply to mobile phones and text messaging.
At its core, the Telephone Consumer Protection Act 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 and other communication fields, the FCC has had to constantly update and revise the Telephone Consumer Protection Act to keep up with the needs and expectations of consumers.
Understanding Telephone Consumer Protection Act Requirements
Brands need to know how the Telephone Consumer Protection Act 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 those messages, brands can end up having to pay minimum statutory fines of $500 per SMS message. If a willful violation of the Telephone Consumer Protection Act law occurs, then a plaintiff can demand as much as $1,500 per message.
Things get even worse for brands when plaintiffs come together and file a Telephone Consumer Protection Act class-action lawsuit. In those cases, each individual fine has to be paid to every class-action lawsuit plaintiff. This can turn small fines into multi-million-dollar lawsuits.
In order to avoid costly lawsuits, brands have to be aware of the Telephone Consumer Protection Act 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 Telephone Consumer Protection Act Survival Guide for more info.
Phone Calls Are the Same as Text Messages
The original version of the Telephone Consumer Protection Act from 1991 obviously did not mention text messaging. However, text messaging is now covered by the Telephone Consumer Protection Act, because the FCC eventually came up with the solution to interpret a message as a phone call. As a result, phone calls and text messages are now equivalent to each other.
Given Consent Is a Requirement
A majority of SMS messages fall into the categories of marketing and sales, and many organizations that send SMS messages want to know how their companies can remain compliant with the current Telephone Consumer Protection Act rules.
The most important factor that these brands need to focus on is making sure that they receive an appropriate level of consent from consumers before texting them.
Written consent is a requirement, and there are many ways to obtain it. One might think that written consent means physically signing a piece of paper, but a digital consent, such as opting in by texting a keyword to a short code, or filling in an online web form, also counts. The Telephone Consumer Protection Act makes it very clear that those are valid options for giving and receiving consent.
Whatever method brands use, they always need to be able to provide proof of given consent. They need to keep a record of their consent history, and they need to have a proper method in place for producing that record when the Telephone Consumer Protection Act challenges them to show it.
Congress and the FCC worry about consumers getting unwanted and annoying text messages, so they want to be certain 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 will contain.
Consent Is Not a Condition of Purchase
“Consent is not a condition of purchase” means that brands have to explain to consumers that consumers do not need to give their consent to be texted before they can buy any goods or services. The FCC set up this requirement due to the concern that lengthy sales contract documents would 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. When the requirement to give consent is hidden somewhere in the sales document, then they are not voluntarily giving their consent.
Text Message Marketing Is 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 Telephone Consumer Protection Act 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. Working with experts is the best way to make sure you do everything in a compliant and effective manner.
Text message marketing is a team effort with experts in varying fields, such as Telephone Consumer Protection Act 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 Telephone Consumer Protection Act-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 Telephone Consumer Protection Act compliant text message marketing campaign.
For more information on Telephone Consumer Protection Act compliance for text message marketing, also check out this Telephone Consumer Protection Act video playlist on the Tatango YouTube channel.