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 text messages (SMS) making them subject to some of the same requirements and restrictions as telemarketing calls.
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 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 exemptions for DNC and TCPA SMS compliance.
✔ TCPA Compliance Consulting
The Supreme Court’s decision in Facebook v. Duguid has upended TCPA compliance. Sure, you may have heard that the court adopted the narrow interpretation of the autodialer definition. But what does that mean for your business? Is your dialing technology that you use for text campaigns still considered an automatic telephone dialing system (ATDS)? Our compliance expert will help you answer these questions and any other you may have about the new landscape of text message compliance.
Frequently Asked Questions
What are the text messaging laws by state?
There are 15 states with laws governing consumer solicitation by text message: Arizona, California, Colorado, Connecticut, Florida, Indiana, New Jersey, New York, North Dakota, Oklahoma, Rhode Island, Utah, Virginia, 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 goods/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 into your program.
Are text messages still held to the same ATDS restrictions after Facebook v. Duguid?
Yes. The only thing that SCOTUS’s ruling changes is how the TCPA’s ATDS definition applies to specific kinds of dialing technology.
Which sorts of texting systems are no longer considered autodialers after Facebook v. Duguid?
While it remains to be seen how lower courts interpret the ruling, it seems nearly certain that including peer-to-peer (P2P) texting, triggered text alerts, and artificial intelligence or interactive texting systems will not be subject to the TCPA’s restrictions on the use of an ATDS. The consequences for mass texting systems is less clear but it is likely that those devices will also no longer be regulated as autodialers.
Does the Do Not Call list apply to text messages?
Since the Supreme Court decision in Facebook v. Duguid, multiple TCPA class actions have been filed alleging DNC violations. Marketers 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. This is not affected by the Facebook decision.
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.