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: 

• You may not make calls before 8 a.m. or after 9 p.m. local time. • You must identify who they're calling on behalf of. 

• You must keep a company-specific do-not-call (DNC) list, which consumers can be added to upon request. They must abide by these restrictions for five years. 

• You must heed a national DNC list, curated by the FCC. 

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:

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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. 

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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: 


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The above processes ensure that a consumer has expressly given their  permission to receive recurring SMS messages from a Marketer and provides  clear and conspicuous disclosure as to the details of the program.