In the last section, we cleared up the legal differences between promotional and transactional texts. To prevent upset customers and potential legal action, businesses also need to comply with the Telephone Consumer Protection Act (TCPA), among other regulations, to ensure consumer protections when it comes to text marketing. In this chapter, we’ll break down who’s in charge of creating and enforcing these regulations.
Who Regulates Texts?
There are a few layers of regulation governing text message marketing. Let’s explore each one in descending authority.
- Federal/Industry Regulators: These are the lawmakers who put forth the rules every subsequent party in the chain must follow. They include…
- Federal Communications Commission (FCC): The FCC regulates media and phone communications in the U.S. You mostly know them from setting TV ratings. They set the wireless carriers’ regulations, and issue the rules and orders implementing the TCPA.
- Federal Trade Commission (FTC): The enforcers. The FTC collects complaints about businesses theft, deception, and violence through the media. They crack down on businesses who use texts, calls, or faxes to scam people.
- Telephone Consumer Protection Act (TCPA): This is the actual legislation that was passed in 1991 with the rules surrounding telemarketing calls, auto-dialed calls, prerecorded/artificial voice calls, text messages (even though the law doesn’t mention them by name), unsolicited faxes, and the national Do-Not-Call list. The FCC also has enforcement authority under the TCPA.
- Cellular Telecommunications Industry Association (CTIA): This trade group is how telecommunications moguls get a seat at the table from a legislative standpoint. This group represents the interests of the wireless industry.
- Mobile Carriers: Without them, texting wouldn’t exist. With that power comes some say over how some texts are sent. For example, AT&T has recently made the decision to not allow messaging from shared short codes to their customers. This has forced messaging providers to shift their attention towards text enabling landlines and other toll-free numbers.
- Messaging Providers: We’re the groups who make text marketing possible. At SimpleTexting we take our compliance very seriously. We constantly monitor accounts for suspicious activity and take an active role in cutting down on deceptive business practices.
- Senders: That’s you and your business! While you may not have a seat at the law-making table, you do have an ethical responsibility to your audience. As such, it’s your responsibility to learn the rules and stick to them!
What Are The Text Marketing Rules?
We’ll begin with the most straightforward do’s and don’ts of every text marketing campaign. If you’re new to SMS regulations, or just want a little more clarity, we’ll dive in a little deeper to these concepts below.
- You cannot buy lists of phone numbers and add them as subscribers.
- For commercial texts, your consent must be in writing.
- You cannot send copyrighted or trademarked material that has not been licensed for your use.
- In your confirmation, the CTIA wants the consumer to understand if they’re agreeing to a single-message response or a recurring-messages campaign.
- For non-commercial, informational texts (such as those sent by or on behalf of taxexempt non-profit organizations, political purposes, and other non-commercial purposes, like school closings) you still need prior express consent (but the consent does not necessarily need to be written).
- You can only send messages pertaining to alcohol to age-verified subscribers.
- You cannot send confidential information, threats of violence, hate speech, or graphic violence.
Text Message Laws
Now that you’re more familiar with the rules, let’s take it a step further and engage with the laws that compliment compliance. At SimpleTexting we support all major mobile carriers across the U.S. and Canada, so we’ll touch on the most prevalent regulations in both countries.
Telephone Consumer Protection Act
As we previewed above, the TCPA is the U.S. legislation passed to govern the use of autodialers, prerecorded/artificial voice, and faxes. The main takeaway from this legislation is that businesses and organizations MUST obtain written consent from individuals before texting them commercial messages with an autodialer. This applies in cases even when you’ve already collected a customer’s information. Just because you have their number doesn’t mean you can send them automated promotional texts. You must have their express, written, consent given in response to a clear and conspicuous disclosure that the person is agreeing to receive marketing messages sent by an autodialer, and that consent is not the condition of a purchase. In addition to providing TCPA consent, your organization is also responsible for complying with the CTIA’s guidelines requiring you to provide your identity in your confirmation message as well as in message opt-out instructions.
For any legal buffs out there, you may be familiar with two big cases that brought the TCPA into the national spotlight.
The first was Moser v. FCC which was essentially the first rebuttal of telemarketers to the new legislation. The outcome was the law and its industry restrictions being held up as constitutional. Another interesting Ninth Circuit case came into play after the millennium. It evaluated whether the TCPA applied in cases of text advertising. Finally, there was the iconic 2014 case which saw Capital One fall in a class action lawsuit that resulted in $75.5 MILLION in penalties for utilizing an automated dialer without consent.
Canada’s Anti-Spam Legislation (CASL)
In 2014 Canada passed their version of the TCPA. The goal of this legislation is to protect Canadian citizens from spam and malware while also supporting a competitive, innovative economy. The CASL describes rules for anyone who wants to send Commercial Electronic Messages, or CEMs, to recipients in Canada.
Similar to U.S. legislation, CASL is based on a system of consent. However, Canadian consent comes in two forms:
- Implied consent: You obtain consent when a person provides contact information through an existing business or non-business relationship, or discloses or publicly publishes their info.
- Express consent: You obtain consent when the person explicitly agrees, either orally or in writing, to receive your CEMs.
Express consent is valid until the recipient withdraws it, but implied consent generally has an expiration date of two years, after which you can no longer legally send CEMs.
In addition to obtaining consent, you also need to provide identification/contact information and an unsubscribe mechanism in all of your CEMs, similar to the automatic compliance message required in the states. The CASL recommends providing an in-text opt-out method (text STOP to stop) as well as a link to unsubscribe.
Now that you’ve learned about text message laws, it’s time to briefly cover what happens if you break them.
💡 Key Takeaways:
- The FCC and Telephone Consumer Protection Act (TCPA) largely regulate the text marketing industry.
- Mobile carriers also have control over what kinds of texts can go through to users cell phones.
- Always identify yourself or your business when engaging in commercial conversations.
Disclaimer: Please note that this advice is for informational purposes only and is neither intended as nor should be substituted for consultation with appropriate legal counsel and/or your organization’s regulatory compliance team.
Previously: Transactional vs. Promotional Texts
Up Next: TCPA Violations and Compliance