Researching and comprehending SMS compliance legislation is critical for businesses before they start collecting contacts or sending texts. Although SMS compliance may not seem complicated, it is required by law. If you don’t follow the rules, there can be consequences, such as paying a lawsuit settlement. For example, in 2012, Papa John’s had to fork over $16 million because they needed proper user consent.
This guide provides an overview of the most critical aspects of SMS compliance, followed by a more in-depth exploration of topics such as methods for opt-in, promotional requirements, and related laws. By the end of this guide, you will have developed the confidence to send texts without worrying about violating any rules or regulations.
What is SMS Compliance?
SMS compliance refers to the regulatory rules and laws established by several organizations and legislatures across the country that must be followed when sending out marketing text messages. These rules can be divided into two critical sets of SMS compliance regulations: CTIA & Carrier and Legal Compliance.
SMS compliance refers to following the law regarding texting for marketing purposes. Because spam texts are both annoying and a breach of privacy, there are laws dictating how companies can SMS customers. It is all about obeying these laws when businesses perform SMS marketing strategies. Knowing what are the SMS marketing laws will also help businesses understand more about the proper implementation of their text campaigns.
What are the Organizations that oversee SMS Compliance?
Five significant organizations establish and oversee SMS compliance with laws and regulations. These are the following authorities.
- The Federal Communications Commission – The FCC is a government organization that deals with communications. Its primary responsibilities are ensuring US communications laws are upheld and managing technological innovations in this area.
- State-Specific SMS Ordinances – Recently, some states have passed laws pertaining only to mobile messaging. For example, Florida’s rule only affects the state’s residents. Oklahoma is another state that may implement the same legislation for its residents.
- The Mobile Marketing Association – The MMA is a global trade association that develops best practices, self-regulatory guidelines, and educational resources for mobile marketers. The organization also helps businesses with SMS compliance by guiding the various rules and regulations.
- Cellular Telecommunications and Internet Association – The CTIA, formally known as the Cellular Telecommunications and Internet Association, is a nonprofit regulating group developing best mobile industry practices.
- Wireless Carriers – If you send business-to-consumer marketing messages via text, keep in mind that wireless carriers like AT&T, Sprint, T-Mobile, and Verizon may have their guidelines for customers. While these companies can’t legally enforce laws, they reserve the right to if marketers violate their policies.
Partnering with mobile marketing companies with direct connections to carriers has many advantages. One is that companies must follow the carrier’s rules to send text messages on their network.
What are the acts that govern SMS Compliance Requirements?
Two acts govern SMS compliance requirements, the Telephone Consumer Protection Act (TCPA) and the CAN-SPAM Act.
1. Telephone Consumer Protection Act (TCPA)
Congress enacted the Telephone Consumer Protection Act (TCPA) in 1991 to halt the incessant telemarketing calls and use of telephone dialing systems, otherwise known as robocalls. The legislation applied restrictions to both marketers and phone carriers. Additions were made over the years, including the government-implemented rules that necessitated companies make and keep a do-not-call list if they wanted to continue making telephone solicitations. Also, in 2012, a revision to the law required telemarketers to do the following.
- Before contacting any consumers, ensure you have received their written consent.
- To avoid the “established business relationship” loophole for calls without consent
- Telemarketers must allow consumers to stop future calls through an automated system immediately.
The law states that businesses cannot send consumers text messages or faxes without their consent. If a company does not comply, it will be fined $500 per message illegally sent.
2. CAN-SPAM Act
The Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM), passed in 2003 by Congress, aimed to stop the mass amount of unsolicited commercial email and text messages being sent to people’s wireless devices. Section 14 of CAN-SPAM required the FCC to develop rules protecting consumers from future “unwanted mobile service commercial messages.” This act only strengthens and builds upon what was established in the TCPA.
The Federal Trade Commission published the Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM) to reduce unsolicited email messages containing explicit or offensive material. The TCPA covers autodialers, but the law has recently extended to cover any commercial entity. With this new development, companies can send informational messages as long as they do not promote new business; for example, a company could update their customers on the status of a purchase that has already been completed.
Before the widespread adoption of text messaging, the CAN-SPAM Act was created in 2003. The Federal Trade Commission can write new SMS marketing regulations within these guidelines. Still, the Federal Communications Commission remains the chief arbiter of SMS communication laws through the Telephone Consumer Protection Act.
What organization are TCPA and CAN-SPAM Act under?
The Telephone Consumers Protection Act (TCPA) and the Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM) are under the Federal Communications Commission (FCC).
The Federal Communications Commission (FCC) is an independent United States government agency responsible to Congress. The FCC was established by the Communications Act of 1934 and regulated interstate and international communications by radio, television, wire, satellite, and cable.
The FCC is always looking for new and improved solutions to help organizations get their hands on the information they need. As technology changes, so do the FCC and TCPA rules and regulations. To avoid penalties, text message marketers should stay updated on current procedures.
What are the important things to consider about SMS Compliance?
There are ten essential things to consider about SMS compliance to ensure that your SMS marketing campaign is not violating any rules. These things are listed below.
1. Express Written Consent
The Telephone Consumer Protection Act (TCPA) states that customers must provide explicit, written consent before businesses can send them automated promotional text messages. It means that the customer needs to be fully aware of what they are signing up for and cannot simply unnoticed agree to something buried deep within a long and tedious form full of fine print. If a business does not follow this guideline, it is considered one of many possible violations under the TCPA.
Even if a text message informs the recipient of something, consent must be given beforehand. It means that they can consent to receive SMS marketing messages in several ways, such as;
- To receive more information about a product or service, send a keyword to the number included in the advertisement.
- To submit your phone number online, enter it into the web form and read the terms carefully.
- Joining in person at a location that requires specific terms to be signed.
You are not allowed to make opting into your text program a condition of purchase for property, goods, or services. Nevertheless, whatever method you use to get consent should have a clear call to action linked with it.
2. Importing Contacts
Express written consent is not only for new contacts–it’s for all contacts. Even those you import. However, our team may manually review your import requests to confirm that your messages can be sent.
Only you know whether the subscribers on your list were gathered compliantly.
Always get confirmation from your subscribers that they want to hear from you before importation. This way, you’re 100% sure everyone on your list wants to receive your messages.
3. Call-to-Action
The following elements should be included in your call-to-action to make it effective in prompting individuals to opt into your SMS campaign:
- Automated Marketing Messages
The federal “express written consent” rules demand that recipients of automated marketing messages agree to them- so make sure your CTA reflects that. Also, as noted previously, let customers know that consenting to receive texts is not required to purchase from you.
- The Purpose of the SMS Campaign
Keep your subscribers in the loop by letting them know what they can expect from signing up. Whether it’s reminders, coupons, or tips, let them know, so there are no surprises down the road.
- Frequency of SMS Marketing Messages
Make sure to let your subscribers know how often they can expect to receive messages from you. If it’s just a one-time thing (like a coupon), or if they’re signing up for regular updates (like weekly deals), make sure the frequency is precise. You can even include an approximate number of messages per week or month, so customers know what to expect.
- Message and Data Rates
Although unlimited texting has become more standard, your subscribers may still have to pay a small fee to receive text messages from you. To comply with wireless carrier requirements, you must inform subscribers that they may incur these charges when they sign up for your program.
- Terms and Conditions
List all the terms and conditions beneath the CTA or provide a link nearby. It should contain your brand, contact information, description of your products, and opt-out instruction.
- Privacy Policy
A privacy policy protects the rights of your customers and outlines how you will keep their information private. It is similar to terms and conditions but can be sent as a link to the full explanation.
4. Outline Your Details at Opt-In
If you want to start promotional texting a customer, they must first opt-in to your program.
You can only begin text marketing if you have obtained their phone number through a sales transaction or other means.
The customer must knowingly agree to receive texts from you before any messages are sent.
5. Clearly State the Terms and Conditions
Conflict can quickly occur in the middle of your campaigns if customers forget they signed up for SMS marketing weeks ago. Well-written terms and conditions let your customers know exactly what they’re signing up for before getting started.
This way, you can protect your business from legal action if the customer feels that their privacy has been invaded. To ensure this happens, get consumers to tick a Terms and Conditions checkbox when subscribing.
6. Time your text messages properly
After getting consent from your users, send texts regularly during the day, so you don’t seem too invasive. Once a week is an optimum frequency for sending messages. Time your messages to send during daytime hours, specifically between 8 AM and 9 PM, for best results.
Another factor to think about is time zones. Just because it might be 8:30 PM where you are doesn’t mean it isn’t already 10 PM for the person who will receive your text.
7. State Your Details or Brand Name in Every Message
When customers opt-in to receive texts from you, they expect to see some form of branding in every message. It could be as simple as adding your company name or tagline to the end of each message.
If you change up your branding too much, however, it can confuse customers and cause them to unsubscribe.
8. Avoid Using Banned Language and Abbreviations
Although different types of content businesses can send through text messages, some content categories are inappropriate. The content businesses cannot send via text is governed by the Cellular Telecommunications and Internet Association, popular as CTIA. This content is not strictly legislated against, but it is advisable to follow the correct procedures when sending messages of this kind. The acronym for this summarized content is SHAFT.
CTIA’s regulations state that explicit content related to Sex, Alcohol, Firearms, and Tobacco can be sent through text messages. However, anyone wishing to opt-in to receive these types of content must first pass an age-gate verification by inputting their birthdate and confirming they are at least 21 years old.
The CTIA also strongly recommends against sending messages that contain hate speech, profanity, or depictions of violence. It is not only an SMS communication best practice but also common sense.
9. Allow Your Audience to Easily Opt Out
By law, you must include an easy way for recipients to unsubscribe from your SMS communications when informing potential recipients of what those messages will entail. This best practice isn’t just a courtesy; various legislative acts, like CAN-SPAM, require it.
Unwanted text message communications are just as big of a nuisance as email spam, if not more. To be CAN-SPAM compliant, businesses must give recipients an easy way to unsubscribe from such messages.
10. Do Not Message Opt-Outs
As mentioned earlier, you must regularly update your distribution lists to ensure that you aren’t texting people who have chosen to stop receiving your messages.
By frequently checking if anyone has unsubscribed from your SMS messages and updating your CSV, you can avoid experiencing painful consequences for not being diligent.
What are the consequences of not complying with the SMS Regulations?
Error-free text messaging compliance can be challenging, but the fines for making even one mistake can be costly. And having a complete understanding of prior express written consent does not mean your business is clear from all other possible errors.
One common mistake businesses make assuming that getting a third-party service to send out text messages automatically shields the company from liabilities.
If a business uses a separate texting service, they are still held responsible for the content of its messages. Each message with violative content will result in a $500 fine. In simpler terms, if one message breaches TCPA compliance, this is the penalty for that single message and not the fine for the entire campaign.
If an SMS campaign illegally contacts 1,000 people, the fines start at $500,000. If any violations are considered intentional, each fine is tripled to $1,500. In that same campaign contacting 1,000 people where only one message was sent to each person– if it’s deemed premeditated– the total penalty would be $1.5 million.
There is no limit to the amount of damages businesses can be held responsible for if they violate spam laws. With a growing subscriber list, the potential damages often exceed insurance coverage.
Is Compliance important for SMS Marketing?
Yes. SMS compliance is essential for SMS marketing success. Mobile Compliance is necessary to guarantee the validity of text message marketing. With mobile Compliance in place, businesses can be confident they’re reaching consumers who want to hear from them and vice versa.
Companies that do not follow SMS compliance may face severe penalties, such as fines or legal action. Governmental regulations dictate what steps businesses can and cannot take with their text message marketing campaign.
The rules and regulations surrounding SMS messaging are constantly changing, so it’s crucial to stay up-to-date to remain compliant. Fortunately, trusted mobile marketing partners can support your efforts by informing you of the latest changes at the carrier level and through CTIA and federal and state agencies.
Does failing to comply with the SMS Regulations have a significant impact on a business?
Yes. Non-compliance with SMS regulations directly impacts the campaign’s success and the business. It is of the utmost importance to understand the laws related to this marketing method. Though you may not intend to break the law, certain compliance aspects could be easily overlooked. Even a tiny mistake could cost your business millions and damage consumers’ trust in your company.
SMS sending regulations prevent businesses from unduly exploiting the infrastructure people rely on for essential communications. If these laws didn’t exist, many innocent people would fall prey to scams and other unethical practices. The TCPA protects people’s privacy and ensures that communications are only sent to those who want to receive them.