With the rise in mobile usage, text message marketing has become an extremely effective channel for businesses to reach customers. However, there are important TCPA compliance regulations around text messages that marketers need to understand. This guide will provide a TCPA compliance checklist to ensure your text message campaigns stay within legal guidelines.
What is the TCPA?
The Telephone Consumer Protection Act (TCPA) is a federal law that restricts automated calls and texts to consumers. While the TCPA was enacted in 1991 before text messaging was widely used, the law applies to both voice calls and text messages. For brands looking to use text message marketing in 2024, it’s crucial to understand TCPA regulations and build compliant SMS campaigns.
Does the TCPA Apply to Text Messages?
Yes, the TCPA’s provisions around automated calls apply equally to text messages. When the TCPA was enacted, lawmakers did not anticipate the rise of text messaging. However, the Federal Communications Commission (FCC) has determined that the TCPA restrictions on automated calls also cover texts.
Specifically, the TCPA’s regulations on “auto-dialers” apply to text message marketing. An auto-dialer refers to equipment that has the capacity to store or produce telephone numbers using a random or sequential number generator. This includes computer software and systems that can send out automated texts to a list of phone numbers.
In essence, any text message sent from an automated system falls under TCPA rules. This means that brands must comply with requirements like obtaining prior express written consent before sending marketing SMS messages. An experienced consumer protection lawyer can help you determine if your rights have been violated.
TCPA Compliance Checklist for Text Message Marketing
Follow this TCPA compliance checklist to keep your text message marketing legally compliant:
Obtain Prior Express Written Consent
The TCPA requires you obtain a consumer’s prior express written consent before sending marketing text messages. This means:
- Consent must be clearly given in writing – can’t be verbal or implied
- Consumer must understand they are agreeing to receive marketing messages
- Opt-in method must specify text messaging as contact channel
Record Proof of Opt-In Consent
Keep records that demonstrate a consumer opted in to receive marketing texts. Proof may include:
- Singed consent forms with permission checked for texts
- Confirmation emails/screenshots showing opt-in for texts
- Website form submissions where text opt-in was selected
Honor Opt-Out Requests Immediately
If a consumer requests to opt-out of receiving further text messages, you must honor the opt-out immediately. Failure to do so results in TCPA violations.
Limit Message Frequency
While the TCPA doesn’t dictate an exact number, sending too many texts to customers may be grounds for lawsuits under telemarketing harassment laws. Best practice is to keep marketing text frequency to 1-2 per week.
Use a TCPA-Compliant Platform
Make sure any platform used to conduct text message campaigns is TCPA-compliant. They should provide proof of consumer consent and opt-out abilities. Using an untested SMS platform puts you at significant TCPA risk.
Understand TCPA Exemptions
Certain types of informational texts may be exempt from TCPA consent requirements. However, exemptions still require opt-out abilities and often have additional stipulations, so fully understand exemptions before relying on them.
Key TCPA Exemptions for Text Message Marketing
While most texts require explicit written consent, there are some exemptions for informational messages under the TCPA:
- Appointment and shipping reminders
- Alerts about bills, events, sales, etc.
- Responses to consumer requests for information
- Ongoing transactional details about purchased products/services
- Surveys or polls (with frequency limits)
- Certain political messages
However, even “exempt” texts must still provide notice and opt-out abilities. Exemptions also require the program only sends the types of messages consumers would reasonably expect to receive.
Understanding restrictions around proactively sending marketing messages versus responding directly to consumer inquiries is also important. Review exemptions closely before relying on them to avoid consent requirements.
TCPA Compliance Best Practices
Here are some top tips for maintaining TCPA compliance in your SMS marketing:
- Document consent: Save subscriber opt-in details like forms, texts, dates, etc. to prove consent if needed.
- Honor opt-outs immediately: Have processes to remove opted-out numbers from your system right away.
- Limit text frequency: Only send necessary service texts and limit marketing blasts.
- Use SMS provider tools: Work with an SMS vendor who can help track compliance, consent, and opt-outs.
- Consult counsel annually: Review your program with legal experts to identify any compliance gaps.
Penalties for TCPA Violations
Failing to comply with the TCPA when texting consumers can lead to scary fines:
- $500 – $1500 per text violating consent rules
- $1500 – $5000 for willful or knowing violations
Class action lawsuits over SMS violations regularly yield multi-million dollar settlements. Having proper consent and compliance practices is crucial to avoid devastating TCPA penalties.
TCPA Compliance Mistakes to Avoid
Don’t make these common TCPA compliance mistakes with your text message marketing:
- Not having clear written consent to send marketing texts
- Failing to provide the ability to opt-out of messages
- Sending too many texts without frequency limits
- Relying on purchased lists instead of opt-in contacts
- Using SMS technology that isn’t TCPA-compliant
- Not honoring opt-out requests immediately
- Assuming certain messages are exempt when they aren’t
Is Your Text Message Marketing TCPA Compliant?
At the Ware Law Firm in Mississippi, our TCPA attorneys stay up-to-date on the evolving TCPA landscape. We can help craft compliant text campaigns and steer clear of violations.
To discuss your specific SMS marketing plans, contact our office for a free case review. With the right legal guidance, you can engage customers through text messaging while avoiding regulatory pitfalls.