Ensuring Your SMS Marketing Complies with the TCPA

Over the past several years, I've seen more marketers embrace SMS (better known to casual users as text messages). SMS is a great way to harness the power of mobile to send notifications and updates to customers.

Unlike many social media platforms, SMS marketing will send an alert directly to your device (unless you've turned the device off, of course). And while it costs money to send texts, there's no need to navigate social media marketing platforms or pay money to advertisers.

But mobile marketing like this comes with its own special considerations. The government has passed laws protecting consumers from intrusive phone marketing, and has deemed SMS marketing part of that. Read on to learn how you can ensure your SMS marketing complies with the TCPA.

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.
  
  For more information about the TCPA's restrictions, go here.

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 the 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.