If you are looking to send marketing text messages to contacts in the United States, you need to comply the Telephone Consumer Protection Act (TCPA). The TCPA is US law that among other things, outlines who you are allowed to send marketing text messages to.
One of the most important aspects of the TCPA is that you must obtain prior express written consent from a contact before sending them any marketing text messages.
In this article, we will explain the requirements which must be met in order to comply with the TCPA.
Please note that this article is provided as a resource, but does not constitute legal advice. If you have more questions, please contact an attorney in your area who is familiar with this topic.
About The TCPA
The TCPA was originally enacted in 1991 to protect consumers from increasing unregulated telemarketing calls and faxes. In recent years, the scope of the TCPA has been widened to included text messaging by the Federal Communication Commission (FCC), which is tasked with enforcing the TCPA.
Businesses that violation the TCPA can face fines of $500-$1500 per violation.
Your MOBIT campaign must meet the following list of the requirements to comply with the TCPA.
- Black Out Hours: Text messages can not be sent between 9pm and 8am at the subscriber’s local time.
- Opt-In: You have obtained prior express written consent from a contact before sending them any marketing text messages.
- Opt-Out: Clear unsubscribe instructions are provided. You cannot send text messages to mobile numbers that have opted-out.
About Prior Express Written Consent
Companies cannot rely on “Established Business Relationships” as a basis for sending text messages to contacts without their prior express “written” consent.
There are two components to prior express written consent:
1 - When opting in, contacts must understand that text messages will be delivered using automated technology
2 - Contact's must have been made aware that they were not required to opt in as a condition of any purchase. In other words, you can't force contacts to consent to receive marketing text messages when they make a purchase from your business.
For businesses, if the question ever arises, the burden of proof is on you to prove that contacts provided you with their prior express written consent.
Obtaining Prior Express Written Consent
Contacts can opt-in to receive text messages from your business by texting a keyword to a short code, which is known as a handset opt-in, or by submitting a web form, which is known as a non-handset opt-in. Obtaining prior express written consent from a contact should be built into your opt-in process. You can read more about this in our article on recommended US opt-in processes.
1 - Non-marketing text messages such as flight updates and bank alerts
2 - On-demand text messages that so long as it:
- is requested by the consumer;
- is a one-time only message sent immediately in response to a specific consumer request; and
- contains only the information requested by the consumer, with no other marketing or advertising information.
Please note this is an area of the law that is subjective, with courts ruling in favor and against these exemptions. We strongly advise that businesses always obtain consumers prior express written consent before sending them text messages.