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Text & Email Marketing Regulations: What You Need To Know
In this article, we'll outline the key FCC regulations you need to know to ensure compliance with SMS and email marketing laws.
When it comes to email and text marketing regulations, one crucial term to keep in mind is "consent." Obtaining customer consent is essential for ensuring compliance with email and text marketing laws and protecting your business from legal trouble. By obtaining customer consent, you can leverage the power of text and email marketing to boost your business, all while staying within the boundaries of the law. Customer consent is not only a requirement under FCC regulations, but it's also a best practice in today's world where spam is rampant.
One common question people ask is "when can I text my customers?" According to FCC rules, commercial text messaging consent must be in writing and cannot be given verbally. However, for non-commercial use, oral consent is acceptable. Thanks to the E-SIGN Act, consent signatures can be collected electronically through email, website forms, kiosks, text messages, and other channels.
The "Golden Rule" of SMS marketing laws is to always obtain clear and documented customer consent. By doing so, you can confidently execute your text and email marketing campaigns, knowing you're compliant with regulations and protecting your business in the long run.
Who regulates sms text message marketing?
Text marketing rules and regulations are overseen by three main organizations, each with varying levels of authority and impact on allowable practices. The complexity surrounding these regulations is often a result of a lack of understanding regarding the unique powers and relationships held by each group.
CTIA (Cellular Telecommunications Industry Association)
The CTIA is a group consisting of wireless carriers and other influential members who play a role in promoting best practices. Although not a government agency, they hold the power to impact your business substantially by terminating your long code or short code or blocking text messaging services for non-compliant groups. CTIA offers "Messaging Principles and Best Practices" that establish a set of guidelines for acceptable and unacceptable practices. For more details about the CTIA, please visit their website at https://www.ctia.org/.
FCC (Federal Communications Commission)
As a governmental organization, the FCC possesses the authority to establish and enforce laws that allow for legal action and fines. The FCC utilizes two primary laws to oversee the distribution of spam through text messages and emails. These laws are commonly referred to as the Telephone Consumer Protection Act (TCPA) and the CAN-SPAM Act. Despite not being specifically developed for SMS marketing, text messaging falls within the same regulations as auto-dialers and telemarketing. A comprehensive overview of both laws can be found below, while additional information regarding the FCC can be obtained from their website at https://www.fcc.gov/consumers/guides/stop-unwanted-calls-and-texts.
MMA (Mobile Marketing Association)
The MMA, while influential, lacks legal enforcement powers and control over the industry like the FCC and CTIA. Rather, it operates as an association of members aimed at promoting best practices and effective consumer communication. In the context of text regulations, it is more relevant to examine the regulations of the FCC and CTIA. Additional information on the MMA can be found at http://www.mmaglobal.com/ and their best practices can be downloaded with a required form at http://www.mmaglobal.com/files/whitepapers/2014%20Messaging%20v3.pdf.
An overview of the FCC AND CTIA Regulations
Now that we’ve established the organizations that govern text message marketing, let’s dive into the actual regulations they’ve provided.
TCPA (Telephone Consumer Protection Act)
In 1991, the Federal Communications Commission (FCC) enacted the TCPA, which imposes restrictions on unsolicited telemarketing communications, including faxes, pre-recorded calls, and SMS text messages (as set forth in 47 U.S.C. 227). Although the TCPA does not explicitly refer to text message marketing, the FCC later clarified that it falls under the same regulations as automated dialing systems. In October 2013, the TCPA was revised to mandate that businesses obtain prior express written consent from customers before sending them marketing text messages. While emails also require consent, they are subject to less stringent regulations and may be consented to verbally.
With regard to text message marketing, the primary regulations of the TCPA include
- Prior Express Written Consent – Before sending any commercial or marketing text messages, a consumer's written consent is necessary, as per the E-SIGN Act disclaimer below, which clarifies what is meant by "written." The consumer's written consent must demonstrate that they received a "clear and conspicuous disclosure" of the type of messages they will be receiving and unambiguously agrees to receive such messages at the given phone number. The E-SIGN Act permits consent to be obtained through several channels, including email, website forms, text messages, telephone keypress, and voice recording. It is worth noting that tax-exempt nonprofit organizations are exempt from complying with the do-not-call provisions of the TCPA.
- Prior Express Consent – Consent can be given verbally for non-commercial information texts, including those sent by or on behalf of tax-exempt non-profit organizations, political messages, and other non-commercial purposes like school closures.
- Auto Opt-Out Mechanism – Recipients must be allowed to opt out by replying directly to the text message they received.
- Text Message Content – The TCPA stipulates that text messages should contain (1) the sender's identity and (2) instructions for opting out. The CTIA specifies that messages must incorporate opt-out instructions at least once a month.
- Appropriate Texting Times – The sending of marketing text messages is subject to certain restrictions, including a time limit between 8 am and 9 pm based on the receiver's local time. The TCPA, in essence, forbids the use of auto-dialers to send text messages to mobile phones for marketing purposes unless the recipient has given prior consent or the message is of an emergency nature. References for the FCC Regulations discussed above, and for additional regulations not mentioned above, include:
The FCC's regulatory emphasis is on recipient permissions, whereas the CTIA places greater importance on the messaging content and the accompanying disclaimers.
The following guidelines are documented by the CTIA in Short Code Monitoring Handbook.
- Opt-in Consent – The CTIA again comments on the requirement for prior express consent.
- Opt-out Mechanisms – Automatic opt-out of recipients who reply with any of the following universal keywords: STOP, END, CANCEL, UNSUBSCRIBE, and QUIT are mandatory for text messaging programs. Opt-out instructions must be displayed in recurring-messaging programs at regular intervals, either in content or service messages, at least once per month. A final opt-out message may be sent to confirm a successful user opt-out.
- Customer Care – To comply with the customer care clause, you must furnish a means for recipients to access additional information about the program and their program status. At the very least, sending a text with the word HELP should yield the program's name and contact details.
- Opt-in Confirmation Message – Upon a consumer opting in for marketing messages, a confirmation text must be dispatched without delay (or promptly thereafter) and must comprise of
- The identity of the sender
- Customer care information (examples include: reply help for help, contact us at 888-888-8888, email support at email@example.com, etc)
- Opt-out instructions (reply STOP to unsubscribe)
- Messaging/product quantity or recurring messages disclosure
- “Message and data rates may apply” disclosure
- Requirements in the Call-to-Action – The CTA or call-to-action is the place where customers sign up for messages. It needs to include the following
- Product Description
- Messaging frequency or recurring messages disclosure
- Terms and conditions or link to terms and conditions
- STOP keyword (this can appear on a separate page in the terms and conditions)
- “Message and data rates may apply” disclosure
THE TCPA AND THE CAN-SPAM ACT
The FCC uses two main laws to govern the issue of text and email marketing spam, namely TCPA, and CAN-SPAM. Although neither law was specifically crafted for SMS marketing, text messaging is subject to the same rules that apply to telemarketing and auto-dialers. The following is a comprehensive overview of both laws.
TELEPHONE CONSUMER PROTECTION ACT (TCPA)
In 1991, the TCPA was enacted as a law that limits unsolicited telemarketing communications such as faxes, pre-recorded calls, and SMS text messages, which are defined in 47 U.S.C. 227. A modification was made to the TCPA in October 2013 which mandates businesses to obtain prior written consent before sending marketing text messages to customers. Although emails also require consent, they are less regulated, and verbal consent is sufficient.
Essentially, the TCPA prohibits sending text messages to mobile phones using an auto-dialer unless the recipient has previously given consent or if the message is for emergency purposes.
Since October 16, 2013, businesses must obtain prior express written consent for all marketing text messages sent to cell phones. Additionally, the TCPA now applies to both voice and SMS text messages that are sent for marketing purposes.
These significant changes are as follows:
Prior expressed written consent
Unambiguous written consent is required before a telemarketing call or text message can be made/sent. Exception: Calls that are manually dialed and do not contain a pre-recorded message are exempt from the TCPA.
📆 Effective: October 16, 2013
No 'established business relationship' exemption
An established business relationship no longer relieves advertisers of prior unambiguous written consent requirements.
📆 Effective: October 16, 2013
In order to comply with FCC regulations, it is crucial that consumer consent is unambiguous. Although it might be tempting to obtain consent for one type of message, such as text receipts, and then use it to send other types of messages like marketing messages, this should be avoided to prevent negative consequences.
Businesses are required to provide clear details about the purpose of the messages consumers are signing up for and to obtain unambiguous consent. To achieve this, it's recommended to use a positive phrase like “Join our text list for our best offers and updates!”
Consent must be unambiguous, you cannot ask for permission to send text receipts and then start sending marketing messages.
CONTROLLING THE ASSAULT OF NON-SOLICITED PORNOGRAPHY AND MARKETING (“CAN-SPAM”) ACT
The TCPA regulations are complemented by the CAN-SPAM Act, which prohibits the transmission of unsolicited commercial email messages to mobile phones. The FCC's definition of commercial messages, as per the CAN-SPAM Act, encompasses those that primarily advertise or promote a commercial product or service.
The Federal Communications Commission (FCC) has implemented a ban on commercial messages, which are defined by the CAN-SPAM Act as messages that primarily advertise or promote a commercial product or service. However, the ban does not extend to "transactional or relationship" messages, which are messages that provide information about an existing account or warranty information about a purchased product.
Non-commercial messages, such as those related to candidates for public office or forwarded from a computer to a wireless device, are also not covered by the ban.
Nevertheless, senders of commercial messages must provide recipients with a way to opt-out of receiving further messages, and this option should be as convenient as opting-in. Once a recipient opts-out, the sender has 10 days to honor the request and must maintain an ongoing log of opt-out data to ensure that the recipient does not receive any future messages.
The most common opt-out methods for text and email include replying “STOP” to quit (text messaging) and a single-click “unsubscribe” link at the bottom of an email. Click here to learn why customers are opting out of messages.
STEPS TO TAKE TO KEEP YOU ON THE RIGHT SIDE OF SMS MARKETING LAWS
1) Send a confirmation text when a new contact joins.
Sending an automatic response to new subscribers is a recommended practice in marketing. This response should contain six essential components: (1) your business name, (2) the types of messages you plan to send, (3) the frequency of messages you'll send each month, (4) a statement that no purchase is necessary, (5) a disclaimer that standard message and data rates may apply, and (6) instructions on how to opt-out. It can be challenging to fit all of this into a single text, but an opt-out message example is provided below.
EXAMPLE CONFIRMATION TEXT:
“You’ve joined ‘Joe’s Diner’ offers & updates. 2-4 msg/mo, no pur req. Std msg&data rates apply. Rply STOP 2 quit. (Powered by patchretention.com)”
2) Always include the fine print when promoting your text list!
Although the fine print may dampen your perfect design, you'll be grateful when your shortcode remains active (a true anecdote). Although I find it peculiar that we must label everything in today's world, I have come to accept it. Develop the practice of including the following specifics wherever you advertise your keyword or offer individuals the opportunity to enroll in your text or email programs.
- A description of the program.
- The shortcode or phone number you will be sending from.
- The phrase “Msg & Data rates apply.”
- A number of messages participants will receive.
- Instructions to opt-out.
- Contact and support information
3) Add fine print anywhere you are promoting your sms text message club:
What are the penalties for failing to comply with TCPA and can-spam?
Although the FCC states that it doesn't compensate individual spam recipients, it possesses the power to issue citations as a warning and levy substantial fines against companies that are found to be violating or suspected of violating the regulations. As per the TCPA, damages can either be actual or statutory, with the latter ranging from $500 to $1,500 for every unsolicited message, contingent on whether the sender is deemed to have "willingly" or "knowingly" breached the legislation.
In early 2013, Papa John's paid around $16 million to resolve a class-action lawsuit, after being fined for violating TCPA regulations. This incident is one of the most popularly cited examples of businesses facing penalties for breaching these rules. Ultimately, obtaining consent is crucial in such cases.
Now that you know the ropes, are you texting or emailing too much or too little? Check out some tips and tricks for better text and email marketing.
Sources and helpful sites:
- Federal Communications Commission
- Klein Moynihan Turco LLP
- Telephone Consumer Protection Act
- FCC Consumer Guide
- Small Entity Compliance Guide
- E-Sign Act
- CAN SPAM RULES
- CAN SPAM Implementation Guide for Businesses
The information in this post was last updated on August 9, 2017, and is intended solely as a guide to help you comply with FCC regulations. It does not provide legal advice.