What Is TCPA Compliance for Text Messages And Why Does This Matter?
Text marketing is one of the most effective ways to get your products or services in front of potential buyers. However, what many text marketers may not realize is that the Telephone Consumer Protection Act (TCPA) applies to automated marketing text messages (SMS) making them subject to the same requirements and restrictions as telemarketing calls. This knowledge gap has made text marketing one of the hottest areas of TCPA litigation, which has seen an unprecedented explosion since 2015.
Before you begin your next text marketing campaign, take a minute to check the following best practices for text messaging compliance under the TCPA:
✔ Scrub against the Do Not Call List
Under the TCPA, you may only send automated marketing text messages to consumers who have given their express written consent and opted-in to your program. If you do not have the proper consent, you must remove phone numbers listed on the National Do Not Call Registry and individual state registries where applicable. Our flagship product, DNCScrub® enables companies to centralize DNC scrubs with Federal and State Lists and maximize contactable leads by applying relevant exemption s for DNC and TCPA SMS compliance.
✔ Remove Known Litigators
It may seem obvious, yet many companies unknowingly market to serial plaintiffs and TCPA litigators every day. Approximately 1 in 3 TCPA-related claims is brought forth by plaintiffs and/or litigators who have already sued under the TCPA. This group is clever, adaptive and highly skilled at slipping into lead generation programs unnoticed and building massive class-action lawsuits right under your nose. Our award-winning Litigator Scrub® identifies hidden litigators before you text them.
✔ Check for Reassigned Numbers
When a phone number is reassigned from one person to another, any consent you have to call or text that person becomes invalid. Identifying reassigned numbers in your data is critical to text marketing compliance. Check your data with TCPA Reassigned ID℠, an enhanced scrub process that verifies the phone owner, owner's address and identifies reassigned wireless phone numbers. We use live telco authoritative data sources to monitor your CRM in real-time to identify changes to consumer data. A confidence score is appended to each record of the return file.
Frequently Asked Questions
What are the text messaging laws by state?
There are 13 states with laws governing consumer solicitation by text message: Arizona, California, Colorado, Connecticut, Florida, Indiana, New Jersey, North Dakota, Oklahoma, Rhode Island, Utah, Washington and Wisconsin. All 13 of the states require express consent to send a marketing text message, with Connecticut requiring express written consent.
Some general requirements include state registration as a telemarketer (license requirements), time of day requirements, disclosure of solicitor information (name of business, solicitor’s name, etc) and allowing returns of good/services sold.
What consent is required for text messages under the TCPA?
Under the TCPA, you may only send automated marketing text messages to contacts who have given their prior express written consent and opted in to your program.
Does the Do Not Call list apply to text messages?
The DNC list does not explicitly apply to text messages since the TCPA already bans marketing texts without written consent. But marketers should follow absolutely should not text numbers on the DNC list.
Do TCPA regulations apply to text messages?
Yes. As far as the courts and regulatory agencies are concerned, text messages are regulated the same as voice calls. The TCPA and text messages are like two peas in a pod. You should always follow TCPA text message rules/guidelines for TCPA text messaging and optimal TCPA text compliance.
What are the SMS/text message rules and compliance requirements under the TCPA?
The TCPA restricts autodialed marketing texts to cell phones and non-marketing autodialed texts without prior express consent.
Federal Communications Commision (FCC) rulemaking has held that sending manual texts does not count as making use of an ATDS under the TCPA. However, because peer-to-peer texting can be one-to-one, or in some cases, one-to-many, there is some debate as to whether those texts count under the definition of an ATDS.
What text message exemptions are there under the TCPA?
In 2014, the FCC created TCPA exemptions for certain kinds of non-marketing telephone consumer protection act text messages. These include package delivery notifications, utility shutoff notices, and certain kinds of messages from schools to parents. Each of these exemptions has specific requirements but all of them share the requirements that messages contain no marketing content and that the entities sending them honor opt-out requests.
How does the TCPA treat political texts?
If you are texting a wireless number using an ATDS, prior express consent is required, even if the calls are purely informational. Note that this is a slightly lower standard of consent from the prior express written consent for marketing texts to wireless numbers. Political campaigns are frequent targets of TCPA lawsuits often because they operate under the mistaken assumption that no consent whatsoever is required for political calls and texts.
What is TCPA compliance for text messages?
While the TCPA applies to text messaging in a number of ways, the main TCPA requirements for text messages are to not send automated text messages without proper consent and honor opt-outs. For marketing messages, the requirement is prior express written consent and for informational messages, the requirement is prior express consent.
What Types of Messages Does the TCPA Apply to?
The TCPA applies to messages sent using an automated text messaging platform. This includes but is not limited to marketing messages, political texts, package delivery notifications, utility service notifications, healthcare messages, educational messages, emergency notifications and other types of informational messages.
What Are the Penalties for text messages that violate the TCPA?
Because the FCC and the courts consider a call to be the same as a text, the penalties for violating the TCPA are the same. TCPA fines are levied on a per violation basis, with standard penalties being up to $500 per violation and up to $1,500 per willful violation.
Who Makes TCPA SMS / texting Compliance Rules in the US?
Congress passes laws regulating texting/SMS messaging, the courts interpret those laws, and regulatory agencies such as the FCC and FTC enforce those laws, creating rules in order to do so. For example, the TCPA text itself does not mention SMS or text messaging because it was passed in 1991, the year before SMS messaging was invented. Subsequent court decisions and FCC rulemaking extended the TCPA’s calling regulations to text messages.
Is there a TCPA compliance checklist texting guide?
We have a number of TCPA text message compliance guides including our TCPA text marketing checklist.
What are the CTIA best practices for text messaging?
Don't send messages that the consumer has not consented to receive. Send messages between 9:00 AM and 9:00 PM, recipient's time. Make sure that it is easy to opt out and honor those opt-outs immediately. Disclose that data and message rates may apply. If you are asking people to subscribe to a recurring message campaign, be clear about the frequency of the messages in that campaign.