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8 Tips You Should Keep In Mind for SMS Compliance

August 31, 2021
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SMS is an incredibly powerful email marketing strategy that allows you to reach consumers more effectively and at lower costs. SMS allows you to target people through the channel they’re most likely to see, open, and respond to.

But before you start gathering contacts and shooting off messages it’s crucial that you first understand the various SMS compliance laws and regulations that have been enacted to protect every customer

Failure to do so could result in stiff penalties, including fees or legal action. 

Need help with SMS marketing compliance? Then this SMS compliance requirements and laws guideline and action plan is for you.   

Who Oversees Text Messaging Compliance?

Short message services (SMS) are text messages sent to and from smartphones and are limited to 160 characters. Today, it’s by far the most popular and convenient mode of marketing communication. In 2019, there were an estimated two trillion ninety-eight billion text messages sent and received worldwide.1 

Although there are no rules prohibiting an individual from texting someone else—even without their permission—the same can’t be said for business-to-consumer messaging. 

Put simply, a person’s text message inbox is a form of personal property. Businesses can’t simply violate their privacy by sending marketing messages without consent. Doing so could be considered a form of harassment. So, if you want to send SMS marketing messages, consumers must opt-in. 

In the early days of SMS, there were no protections in place to prevent businesses from simply purchasing phone numbers and spamming SMS. As a result, several organizations have stepped in to protect consumer privacy and ensure that businesses behave properly. Of those, four major entities oversee the vast majority of SMS compliance:

  1. Federal Trade Commission (FTC) – The FTC is charged with enforcing federal consumer protection laws in order to “prevent fraud, deception, and unfair business practices.”2 
  2. Federal Communications Commission (FCC) – The FCC is another governmental agency that’s responsible for regulating media communications. 
  3. Mobile Marketing Association (MMA) – A nonprofit group that consists of various SMS marketing companies. 
  4. Cellular Telecommunications Industry Association (CTIA) – A group that helps create rules, regulations, and standards regarding SMS marketing.        

Of these, only the FTC and FCC have the authority to create and enforce SMS compliance requirements and laws. 

What Laws Govern SMS Compliance? 

The vast majority of SMS compliance rules fall under the auspices of two acts—the Telephone Consumer Protection Act (TCPA) and the CAN-SPAM Act. 

email marketing services

Telephone Consumer Protection Act

In 1991, Congress enacted the Telephone Consumer Protection Act (TCPA). Its original purpose was to limit the deluge of telemarketing calls and the utilization of telephone dialing systems, and robocalls. The rules therein applied to both marketers and phone carriers. 

Over the years, there were further additions made, including:3

  • 1992 rules that required companies that made telephone solicitations to maintain a company-specific do-not-call list
  • A 2012 revision that required telemarketers to:
    • Obtain prior express written consent from consumers before contacting them
    • To preclude an “established business relationship” as an excuse for avoiding consent for calls
    • Require telemarketers to provide an automated interactive “opt-out” option 

With the emergence of SMS communication, the laws were further applied to all marketing calls, text messages, and faxes. If businesses don’t comply with these rules, it can result in significant fines, starting with a $500 base fine for every text message that’s illegally sent.

SMS Compliance Tip #1—Obtain Consent

To maintain SMS compliance under the TCPA, businesses can’t send a message or call a consumer without their consent—even if it’s just informational. And it can’t be implicit consent or the result of previous business interaction. Instead, companies are required to obtain express written consent for consumers prior to sending messages. 

You don’t necessarily need to have consumer consent via a handwritten letter. Although that would be allowed, it’s not exactly practical in the digital age. Today, there are several ways to obtain consent, including: 

  • Have customers input their phone number into an online web form with the required terms stated clearly. 
  • Send a keyword response based on an advertisement that includes the required terms.
  • Physically signing up in-person via a form with clearly stated terms. 

SMS Compliance Tip #2—Provide a Disclosure 

After consumers opt-in to receive messages, you must disclose the full scope of your SMS communications while also providing a means for opting out. 

Any time a new subscriber joins your list, your very first message is required to be a carrier compliance message that confirms that they opted-in. It needs to include important information like:

  • Who you are
  • How often you’ll be messaging them
  • The fact that messages and data rates may apply
  • How they can opt-out

But even after the initial message, many of these elements should still be included—the most important being the ability to opt-out. So a message may look like:

Hi _______, Electronics Mecca here! Friendly reminder—you have an unused wallet credit in your account that expires this SUN 8/1/21 at 10 pm. Go get yourself something nice. Have a great weekend! Reply STOP to stop.  

CAN-SPAM Act

In 2003, Congress passed the Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM) to try and curb the spate of unsolicited commercial email and text messages sent to wireless devices. Section 14 of the act required the FCC to develop rules to protect consumers from “unwanted mobile service commercial messages.”4 

This act enhances and adds to the TCPA. 

SMS Compliance Tip #3—Identify, Opt-out, Return address

To comply with CAN-SPAM there are three actions commercial emails and texts sent to mobile phones must follow:

  • Identification – There must be a clear indicator that the message is a solicitation or advertisement for goods or services. 
  • Opt-outEmail accessibility and text accessibility are a must and free ways to prevent future messages from being sent.
  • Return address – The email or SMS must contain a legitimate return email address or phone number. And for emails, it must include the sender’s postal address. 

Additional Compliance Tips 

In addition to the tips directly related to complying with congressional consumer protection acts, there are other factors businesses should keep in mind to maintain compliance. These include: 

SMS Compliance Tip #4—Be Careful when Importing Contacts

The requirement to receive express written consent isn’t limited to just your newer contacts—it’s for everyone. So, even if you’re importing a subscriber list, it’s important that you first double check to confirm that every person on that list has voluntarily provided two things:

  1. Their phone number
  2. Express permission to send them messages 

Doing your due diligence will prevent you from being hit by an unexpected violation, particularly when you’re attempting to abide by the rules.  

SMS Compliance Tip #5—There Are Certain Things You Can’t Text (SHAFT)

One of CTIA’s rules for text marketing is known as SHAFT. This stands for sex, hate, alcohol, firearms, and tobacco. Whether it’s a normal message or the first call to action, generally speaking, you can not include these topics in your SMS. 

That said, there are some exceptions to this rule. For instance, if you own a bar or a firing range, you may be able to send messages about happy hours or ammo deals. But to do so, it must:

  • Come from a dedicated toll-free number.
  • Include an age-gate that prevents people under the legal age limit from signing up 

SMS Compliance Tip #6—When You Text Matters as Much as What you Text 

There are only certain time windows that businesses are allowed to message in. Under the TCPA, you may not text or call subscribers before 8:00 AM or after 9:00 PM. This SMS behavior is considered abusive and can result in significant penalties. 

SMS Compliance Tip #7—Protect Yourself with Terms and Conditions 

Customers tend to forget that they signed up for an SMS message. By sharing your terms and conditions, you can remind customers that you are compliant and taking the law into account. 

The terms and conditions of your SMS communication policy should be easy to find and access. Include a link to them within your initial disclosure message and then periodically remind customers about the policy.  

Should conditions change, notify your customers immediately. 

SMS Compliance TIP #8—Adhere to the National Do Not Call Registry

As a business, it’s vital that you respect the privacy wishes of consumers. Do not call or text message anyone who is on the Do Not Call Registry. Doing so is a violation of the law and can result in stiff fines. Similarly, if people opt out, honor their decision and leave the consumer alone. 

After they have opted out, it may be helpful to send a confirmation message that the opt-out was successful and that no further messages will be sent. 

Complying with SMS Rules 

Practicing SMS compliance is an important way you can protect your business and uphold the privacy of consumers. Before you begin building your SMS marketing audience, be sure to work with your legal team to build a legally compliant SMS marketing program.

By following the tips above, you can begin an SMS engagement campaign without having to worry about potential violations or penalties. 

Need help creating an SMS campaign that sells? Check out more email/CRM tips at Power Digital such as email segmentation and email A/B testing

Our digital marketing agency can help you build an end-to-end SMS campaign. Whether it’s identifying your target audience, ensuring compliance, or driving your value props, Power Digital has the tools you need to succeed. 

 

Sources:

  1. Statista. Total number of text messages sent in the United States from 2005 to 2019. https://www.statista.com/statistics/185879/number-of-text-messages-in-the-united-states-since-2005/
  2. FTC. Enforcement. https://www.ftc.gov/enforcement
  3. FCC. FCC Actions on Robocalls, Telemarketing. https://www.fcc.gov/general/telemarketing-and-robocalls
  4. FCC. CAN-SPAM. https://www.fcc.gov/general/can-spam

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