Telephone Consumer Protection Act (TCPA)
What Is the TCPA?
In the late '80s and early '90s, telemarketing had reached a fever pitch. Consumers felt harassed by marketers who would contact them at all hours.
To stem the tide of telemarketer calls, Congress passed the Telephone Consumer Protection Act in 1991. Among other things, the TCPA states that unless the individual has specifically given the marketer permission, the marketer must abide by certain rules of engagement. Among other things:
The TCPA also established firm penalties for its violation. If you violate the TCPA, even accidentally, individuals could sue for $500 or the actual monetary damage of their call, whichever was greater. (This was primarily important in situations where they were billed for unsolicited calls.) They could also receive an injunction against you.
And if you willfully violate the TCPA, callers can sue for three times the damages. While very few individuals dragged callers to court, the FCC saw several class-action lawsuits against telemarketers.
Why Does the TCPA Apply to SMS Marketing?
At the time of the TCPA's passing, cellphones had yet to enter the national market in a big way. Nonetheless, the TCPA was clear that it restricted unsolicited calls to cellphones, along with calls to landlines, fax contacts, and other unsolicited contacts.
So, it's no surprise that when SMS came onto the scene in a big way, it was deemed to fall under the TCPA's auspices. In 2009, the U.S. Ninth District Court of Appeals ruled in Satterfield v. Simon & Schuster, Inc. that text messages were "calls" for TCPA purposes, and SMS marketers need to abide by the restrictions placed on calls.
What's more, this opened the doors to further SMS regulation. The FCC enacted new rules on Oct. 16, 2013, to clarify the limitations placed on unsolicited text messages.
How Does This Affect SMS Marketing?
In 2013, the FCC's new regulations stated that any automatic text messages sent to cellphones must receive unambiguous consent beforehand. In other words, unsolicited text messages aren't allowed, and consumers must opt in.
Subscribers must also have a clear means of opting out of receiving texts.
There's only one exception to the rule that insists you must receive "unambiguous consent" for all automated texts. That's the automated message, sent within five minutes, to confirm a consumer's unsubscription (i.e., lack of consent for contact).
On Oct. 16, 2013, in order to stay in compliance, compliant marketers sent all their current SMS subscribers a text message that brought them in lines with the law. This informed SMS subscribers that they were currently on a list and gave them the opportunity to opt in to continue the service. If they did not specifically opt in, they were removed automatically from the marketer's SMS list.
How Can Marketers Avoid a TCPA Lawsuit?
Since then, marketers have established a few general practices that keep them in line with the laws surrounding SMS marketing. If you're thinking of putting together a recurring SMS program, I encourage you to do the following:
- Because text messages have a length limit, disclose relevant information in the means that originally advertises the SMS program — whether that's a website, a flyer, a TV ad or another medium. Give the potential subscriber clear, conspicuous information about the program and how to opt in and out.
- Provide consumers with a keyword (like "START") they can use to opt in for texts.
- Remind them that message and data rates apply, and they should check with their carrier for these.
- Give them an idea of how frequently they can expect messages (for instance, one a week).
- Give them the option of replying with HELP to a message to receive further help.
- Tell them to reply with STOP to cancel any further messages.
- Ensure your program sends all text messages to the right place. Namely, it should go to the mobile number the consumer provided at sign-up — which may not be the medium used for original contact.
- Because text messages are calls according to the TCPA, be sure they're sent between 8 a.m. and 9 p.m. in the consumer's time zone.
- Keep a record of all opt-in confirmation for at least four years.
The TCPA is confusing to many marketers, especially as it applies to SMS. But with a little knowledge, you can do effective SMS marketing, all within the bounds of the law. See the following examples for guidelines.
Promoting a Recurring SMS Program
Within print marketing materials, the marketer must define the program, convey that one doesn’t have to give consent to subscribe to purchase products or services and include the following terms and conditions:
- Message and data rates may apply.
- Consent isn’t required to purchase products/services.
- Frequency (Receive #/day/week/month)
- Reply Help for help.
- Reply STOP to cancel.
For example:
Optin via Mobile Device
Once a consumer texts the keyword (Obriens) to the 5 or 6 digit shortcode (28766), a confirmation message is sent to that mobile number, requesting the consumer to confirm their optin by replying with a designated keyword.
Only when the marketer’s SMS system receives the confirmation reply with the verification keyword is that consumer considered to be opted-in to the program.
Optin via Web Form Registration
A consumer can subscribe to a recurring SMS marketing program via a web form. Next to the mobile number field, the marketer must disclose the program, convey that one doesn’t have to give consent to subscribe to purchase products or services and include the following terms and conditions:
- Message and data rates may apply.
- Frequency (Receive #/day/week/month)
- Reply Help for help.
- Reply STOP to cancel.
*Please ensure that the word STOP is in bold.
Once the person enters their mobile number in the web form, a confirmation message is sent to that mobile number, requesting the person to confirm their optin by replying with a designated keyword. Only when the marketer’s SMS system receives the confirmation reply with the verification keyword is that consumer considered to be opted-in to the program.
Optout
A consumer may also at any time reply STOP, cancel, end or the program’s designated opt-out keyword to cancel or end their SMS program subscription.
Existing Optin Database Consumers
This should have been performed prior to October 16, 2013. If you did not send out a message verifying their opt-in, then you can’t push any messages to those people until they subscribe to the program again by texting a keyword and then verifying their optin.
For marketers who have not been collecting written opt-ins previously, this means they need to get their existing database consumers to re-opt-in to their programs with written proof that the consumer has read and agreed to the TCPA disclaimer terms. A message will be pushed to all existing database consumers such as the example below:
