SMS COMPLIANCE
Comprehensive Guide to SMS Compliance
Table Of Contents
SMS marketing and mass texting are essential tools for businesses and organizations aiming to engage with their audiences. However, the laws and regulations governing text messaging differ significantly from those of other channels. The penalties for non-compliance are much more severe, making it crucial to understand SMS compliance thoroughly.
Maintaining a compliant text messaging program might seem challenging, but it’s manageable with the right guidance. This guide provides a detailed overview of SMS compliance and lays the foundation for a robust SMS marketing strategy.
Note: All information in this guide is for informational purposes only and is not intended to constitute legal advice.
Who Sets the Rules?
Before delving into texting laws and compliance guidelines, it’s helpful to know their origins and who enforces them. In the United States, two primary entities oversee these regulations :
The TCPA
The Telephone Consumer Protection Act (TCPA) is federal legislation from 1991 that governs telemarketing, text messaging, and the Do-Not-Call list. Although it doesn’t explicitly mention SMS, texts are treated as phone calls under the TCPA. These laws exist to protect people from unsolicited text messages and phone calls.
The CTIA
The Cellular Telecommunications Industry Association (CTIA) is a trade group representing wireless carriers and others in the telecom industry. The CTIA maintains the Short Code Monitoring Handbook, which outlines additional guidelines for SMS marketing. These guidelines align with TCPA laws to protect people from unwanted text messages and enhance consumer experience.
Text Message Laws
Both TCPA and CTIA guidelines should be strictly followed. It’s important to distinguish between what’s law and what’s regulation. The TCPA is federal law preventing unsolicited text messages, while CTIA guidelines are carrier regulations further protecting consumers.
Key Takeaway
TCPA compliance involves following texting laws, while CTIA compliance involves adhering to carrier guidelines.
Express Written Consent
Definition
As defined by the TCPA, express written consent is permission given by someone on paper or electronically to receive promotional messages via an autodialer.
Obtaining Consent
Obtaining express written consent isn’t difficult. The TCPA allows for permission to be given electronically, such as through recorded verbal consent, checking a box on a web form, or texting a keyword to a phone number. This offers several options for capturing consent compliantly.
Key Takeaway: Express written consent can be given electronically, making text-to-join and web forms easy ways to collect opt-ins compliantly.
Types of Messaging
Understanding basic texting laws and express written consent is crucial before exploring the three types of text messaging content, each requiring a different level of consumer consent.
Conversational Messaging
Conversational messaging involves back-and-forth texting between a consumer and a business in real-time. The consent level here is implied since the consumer initiates the conversation.
Informational Messaging
Informational or transactional messages communicate important non-promotional information, like appointment reminders or shipping notifications. These messages require express consent, which can be given through various means but doesn’t need to be written.
Promotional Messaging
Promotional messages contain sales or marketing content. They require express written consent, the highest level of consent, putting you in a strong position if a lawsuit arises.
Key Takeaway: Obtain express written consent for both informational and promotional messages to avoid ambiguity.
Collecting Opt-Ins
Knowing the required consent level, let’s explore the two most common ways to collect opt-ins lawfully.
Text to Join
This method involves texting a keyword to a short code or phone number. To be TCPA and CTIA compliant, your call to action must disclose that recipients will receive future promotional messages, that messages come from an autodialer, and that consent is not a purchase condition. An immediate auto-response confirming subscription must also be sent.
Examples:
Call to Action:
Text [YourKeyword] to [YourNumber] to join our VIP text list and receive weekly specials.
Confirmation Text:
[YourBusiness]: Thanks for joining our VIP text list! Stay tuned for future deals. Reply STOP to opt out or HELP for help. Msg & Data rates may apply. Terms & privacy: [YourTermsLink]
Key Takeaways: Text to join is compliant if your call to action includes the required verbiage. After opting in, people should receive an immediate confirmation.
Web Forms
Web forms are another popular way to capture SMS opt-ins and express written consent. To be compliant, the form must explain that recipients agree to receive automated promotional messages and that consent is not a condition of purchase. An additional confirmation text message should be sent to ensure the subscriber’s identity.
Examples:
Web Form Verbiage:
By checking this box, I agree to receive automated promotional messages. This agreement is not a condition of purchase. Message frequency varies. Reply STOP to opt out or HELP for help. Msg & Data rates apply. Terms & privacy: [YourTermsLink]
Confirmation Text:
[YourBusiness]: Thanks for joining our VIP text list! Stay tuned for future deals. Msg frequency varies. Reply STOP to opt out or HELP for help. Msg & Data rates may apply. Terms & privacy: [YourTermsLink]
Key Takeaway: Use a double opt-in process when subscribing via web forms to ensure subscriber identity.
Required Verbiage
Certain verbiage is essential for compliance with TCPA and CTIA and obtaining proper express written consent. This includes:
Business Name & Purpose: Clearly state the sender and nature of the messages.
Automated Promotional Messages: Disclose that messages will be automated.
Not a Condition of Purchase: Inform that consent is not a purchase condition.
Message Frequency: Specify how often messages will be sent.
Opt-Out Instructions: Provide clear instructions on how to opt out.
Help Instructions: Include instructions on how to get help.
Msg & Data Rates Apply: Inform that standard carrier rates may apply.
Terms & Privacy: Provide links to terms and privacy policy.
Full Compliance Verbiage Example
“You agree to receive automated promotional messages. This agreement is not a condition of purchase. Receive up to [Messages Per Month] messages per month. Reply STOP to opt out or HELP for help. Msg & data rates apply. Terms and privacy policy found at [YourTermsLink].”
Terms & Conditions and Privacy Policy
Terms & Conditions Requirements
These must be clearly visible and not buried. The CTIA requires specific information, including business name, program name, number used, opt-in instructions, opt-out instructions, help instructions, supported carriers, messaging frequency, data rates disclosure, and a link to the privacy policy.
Privacy Policy Requirements
While the TCPA and CTIA don’t have specific content requirements, including a statement about consumer information protection and your company’s liability is advisable.
Controlled Content
Some content, such as adult content or controlled substances, is subject to additional scrutiny. Age-gating functionality is required for content like alcohol and tobacco to ensure recipients are of legal age.
Some content, such as adult content or controlled substances, is subject to additional scrutiny. Age-gating functionality is required for content like alcohol and tobacco to ensure recipients are of legal age.
Prohibited Content
The CTIA and carriers prohibit certain content types, including:
SHAFT Content: Sex, Hate, Alcohol, Firearms, and Tobacco. Exceptions exist, such as age-gated alcohol and tobacco content.
Other Prohibited Content: Includes cannabis, CBD, loans, debt collection, get rich quick schemes, gambling, deceptive marketing, and credit repair.
Violations & Audits
TCPA Violations
Violations can result in penalties up to $500 per message/call and up to $1,500 for willful violations, with no cap on damages. Ensure express written consent for every opt-in.
Short Code Audits
The CTIA, carriers, and other bodies regularly test SMS short code programs for compliance. Non-compliance can trigger audits, leading to short code suspension or termination if issues are not corrected.
Number Shutdowns
Toll-free or 10DLC numbers must also follow TCPA and CTIA guidelines. Automated and manual processes check compliance, and violations can lead to number shutdowns.
Conclusion
SMS compliance is not difficult if you follow key guidelines: obtain express written consent before sending messages, be transparent about what recipients can expect, and provide opt-out instructions. Treply.so offers everything needed to launch a compliant SMS marketing program, from opt-in compliance verbiage to pre-built terms and privacy policies.
For further questions or to learn more, don’t hesitate to reach out. We’re here to help.
Note: All information found in this guide is for informational purposes only and is not intended to constitute legal advice.
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Treply Text is a 100% opt-in service. We do not provide lists of phone numbers nor do we access or share our user's contact lists. To learn more about our stance on spam and data privacy, view our anti-spam and privacy policies.
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