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.
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.
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/.
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.
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.
Now that we’ve established the organizations that govern text message marketing, let’s dive into the actual regulations they’ve provided.
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
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.
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.
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.
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
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.
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.
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)”
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.
By participating, you consent to receive text and email messages sent by an automatic telephone dialing system. Consent to these terms is not a condition of purchase. Message and data rates may apply. Text STOP to 85775 to cancel. Terms & Conditions / Privacy Policy: https://patchretention.com/terms-and-conditions
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:
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.
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