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Is SMS the Safest Marketing Channel? 8 Questions to Minimize Your Risk 

A woman in a yellow blazer is using a smartphone while standing on a city sidewalk

Posted by Arvell Craig on Thu, 04/07/2022 - 12:12

Over the past few months, questions on SMS marketing and TCPA have been some of the most common questions I receive. Today I wanted to share with you 8 questions you must ask yourself to minimize your TPCA risk and maximize your effectiveness with SMS marketing.

First, let’s recap the latest and biggest regulatory decision: The 2021 Supreme Court decision on Facebook vs. Duguid was specifically regarding text messages. And with a win for Facebook, the current theory is that the text channel is the safest way to market to cell phones. Now I’m not here to debate the ATDS definition; I want to just give you a clear and concise approach to minimize your risks with SMS marketing. 

Question 1: Am I stopping the litigators? 

The first and foremost concern with every calling or texting campaign is stopping predatory litigators. Even if you’re capturing all consent you could ever want, you need to scrub your data from litigators. 

This shouldn’t be optional as it poses your highest risk. 

Do not allow these known individuals to get on your lists. Find a solution from a reputable company help you scrub every lead that opts into your system. 

If you want to look into solutions from Contact Center Compliance, start with our brand new crowd sourced litigator solution: StopLitigators.com to get started at no cost. 

Question 2: Do I have full TCPA consent for text marketing? 

Now that you’ve scrubbed the litigators, it is your responsibility to ensure that you have prior express written consent. As my former colleague Neal Kent redubbed the TCPA, “total consent protects all.” Your safest approach is always to obtain prior express written consent from the consumers to send marketing messages. 

In addition, make sure you store that consent in your records for at least 5 years! It would be terrible to do all the right things but be unable to defend your years after the person opted in right? 

For more information on the exact language of proper TCPA consent, check out this Consent Masterclass.

Question 3: What do I do If I don’t have express written consent?

Now we’re getting into an increased area of risk. 

When you don’t have the proper consent, and you want to send marketing text messages, you need to begin asking yourself few different questions:

Question 4: Was this person a past or current customer? 

If the answer is yes, you have a 18-month federal DNC exemption for marketing to existing customers. If they are an inbound lead, your exemption is 90 days. 

This 90 day or 18-month time frame is your permission to follow up with the lead based without checking if they are on the federal DNC list. 

Whatever the reason, product or topic they opted in regarding, you can send the follow up text marketing. Now to be clear, this exemption is for the DNC, not the TCPA. The TCPA regulates the technology you use to send marketing messages. If you don’t have consent to market to them using an ATDS or prerecorded voice message, you’ll need to only be marketing manually. More on TCPA ATDS in a bit…

Question 5: Do I need to check with state regulations? 

Now, even if the lead opted in or previously purchased from you, you’ve got leeway with the DNC, but you always need to check state telemarketing regulations as they can supersede federal regulations if relevant. 

For example, some states have different EBR timelines and exemptions which you’ll have to follow even if the federal guidelines are not as strict. In addition, there are 5 states that ban all unsolicited marketing to wireless numbers. That could result in big fines if you text those states without the proper consent. 

If you need help with state text messaging compliance, start learning with this excellent guide.

Let’s recap what we’ve covered so far: 

1.    Am I scrubbing my list for predatory litigators? 
2.    Do I have proper written consent for SMS marketing?
3.    If I captured consent, am I storing my record of consent?
4.    If I don’t have written consent, can I prove this person is a customer or lead?
5.    Are there state telemarketing regulations that I need to be aware of?

Let’s continue. 

Question 6: Do I have a DNC policy and process in place? 

When you don’t have prior express written consent for text marketing nor an established business relationship, you have to scrub against the DNC. 

With DNC fines as high as $45,000 per message you have to make sure you have a DNC scrubbing process every 31 days. In addition to your scrubbing process, you’ll need a policy and a record of having trained your team on maintaining your internal DNC list. 

We recommend that you find a DNC scrubbing service that can be easily integrated into your operations so you don’t have to rely on manual efforts. As a leader in DNC scrubbing for over 20 years, I’d be remiss if I didn’t suggest you demo our services, but you can go directly to the FTC and get access to the list yourself. 

A few last steps are related to the technology you use for texting.

Question 7: Am I texting with an ATDS? 

The definition of ATDS technology is unfortunately a bit vague. 

For SMS marketing, your risk increases when the system sends a “blast” or “mass” text message. 

And the lowest risk is from sending a triggered or AI conversational message. Now this area is not black and white. But with the Supreme Court’s Facebook ruling, many agree that triggered texts are the safest channel. 

If it feels like a personal message, you won’t likely be suspected of sending “robotexts.” 

Finally, there is one more step you need to be aware of when sending SMS marketing campaigns. 

Question 8: Am I texting the right person? 

Every year, at least 10% of all phone numbers are changed. So any consent you obtain or assumption of the intended party will like be inaccurate. And sending messages to the wrong party can create massive exposure in your business.  

If you are unaware of the Head v. Citibank class action case, you need to go check that out. In short, Citibank was texting numbers that they believed were their own customers but failed to scrub out the reassigned numbers and wrong numbers. That has resulted in billions of dollars in exposure. 

Did the owner of the number change since the last time your contacted them? This is a typical query you’ll plug into a quality data provider to see if your information is accurate. Many different providers can help you check for reassigned phone numbers. Here’s a link to our TCPA reassigned solution.

To summarize everything and get you on your way to using SMS marketing, we have 8 critical question you need to clearly answer before you start sending text messages: 

1.    Am I scrubbing my list for predatory litigators? 
2.    Do I have proper written consent for SMS marketing?
3.    If I captured consent, am I storing my record of consent?
4.    If I don’t have written consent, can I prove this person is a customer or lead?
5.    Are there State Telemarketing Regulation I need to be aware of?
6.    Do I have a DNC policy and process in place? 
7.    Am I using SMS technology that could be considered an ATDS? 
8.    Have I checked my phone numbers to see if the ownership has been reassigned?

To be honest, I could have added additional questions and considerations, but these are the most critical and sometimes overlooked ones. 

With the courts still giving conflicting decisions, and with 27 pending state telemarketing regulations, you will need to speak with an attorney for specific approvals on your campaign. 

If you would like to learn more about our compliance products and data solutions, please reach out to our team.