Even if you’re new to SMS marketing, you’ve likely heard about the importance of TCPA compliance. Our TCPA compliance checklist keeps your customers engaged and your business out of trouble.
More and more companies are onboard the SMS (Short Message Service) train. This isn’t surprising, given the channel’s high open rates, robust performance metrics, and convenient two-way communication capabilities.
However, while businesses are right to pursue this lucrative marketing approach, many are unaware of the need to adhere to TCPA compliance regulations.
Before you send your first (or next) text, review this comprehensive guide to ensure your business is doing things by the book.
Table of Contents
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TCPA Compliance: An Overview
The Telephone Consumer Protection Act (TCPA) dates back to 1991, when the Federal Communications Commission (FCC) enacted a law to regulate telemarketing practices and protect consumers from unsolicited calls made by telemarketers and automated dialing systems (also known as “robocalls.”)
Consumers felt telemarketers’ incessant calls were interrupting their lives with advertising that wasn’t relevant or helpful. Adhering to TCPA compliance standards can significantly mitigate the risk of violations, lawsuits, and damage to your brand.
Does the TCPA Apply to SMS?
Yes, the TCPA extends its coverage to text messages and phone calls. TCPA rules apply to any company that uses phone calls or text messages to reach their customers or prospective customers.
Consequently, telemarketers are subject to identical standards when sending texts to consumers. In the event of a TCPA claim, the legal system regards text messages as being the same as phone calls.
Which Businesses Must Follow TCPA Regulations?
The TCPA applies to all for-profit industries, although it does provide exemptions for tax-exempt non-profit organizations. So, if your for-profit business sends out text messages, you must ensure they comply with the TCPA before sending them to any customer who has signed up for your service.
Start by reviewing our TCPA checklist below to ensure you’re operating within the rules and kicking off your SMS marketing on the right note.
What About Call Centers?
Like any other businesses using telephone communications, call centers must also adhere to TCPA guidelines. The end-goal is to protect consumers from unsolicited calls and messages. So, if your business is marketing to customers on their personal devices, you are subject to TCPA regulations.
New TCPA Rules in 2023
On January 20, 2023, the FCC announced new rules for calls and texts usually exempt from the TCPA. These rules took effect on July 20, 2023. They stem from the Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED) Act. They cover various calls to residential numbers, including non-commercial, commercial without advertising, nonprofit, and HIPAA-related calls.
The main changes involve limiting the number of allowed calls to residential landlines. If you exceed these limits, you'll need prior consent to call again. Callers must still provide ways to opt out of future calls or texts and maintain a do-not-call list.
TCPA Compliance Checklist
The FCC specifies the requirements for legal SMS outreach to your customers. By reviewing the following checklist, you can be more confident in leveraging SMS marketing for your own business:
- Receive express written consent
- Communicate terms and conditions clearly
- Offer an “opt-out” option
- Avoid calling numbers on the National Do Not Call Registry
- Send messages only during business hours
Receive Express Written Consent
You must have prior express written consent if you intend to market, sell, or promote your business’ products or services.
Express written consent is what you would imagine it to be: written permission to contact a customer. This type of permission is required on paper or digitally before contacting the customer with promotional material.
Digital consent options include:
- Web forms
- Electronically written verbal agreements
- Text message keywords
Communicate Terms and Conditions Clearly
Subscribers must have access to your business's SMS communications policy terms and conditions. Customers may occasionally overlook their subscription to SMS messages from your company. Therefore, sharing your terms and conditions is a compliant method to gently remind subscribers about your legal text marketing practices.
Include a link to the terms and conditions in the initial disclosure text, and periodically inform your customers how they can access the policy. It's also essential to notify your subscribers of any changes in the terms and conditions. This proactive approach ensures transparency and adherence to regulatory requirements.
Hi [First Name],
Thank you for signing up for our SMS marketing alerts! You will receive one text message weekly, plus special offers suited to your needs. Check out our terms and conditions [Link] or unsubscribe [Link]
[Company Name]
Offer an “Opt-Out” Option
Ensure text recipients can opt out and have their number put on the National Do Not Call Registry (DNC). Your first message to new contacts must be an opt-in message that clearly states how to opt out of future communications.
Hi, [First Name].
Thank you for signing up for our SMS marketing alerts! Reply STOP to opt out at any time.
[Company Name]
Avoid Calling Numbers on the National Do Not Call Registry
Once a consumer has requested that their telephone number be added to the DNC list, you may not call them. To ensure compliance, you should create and maintain an internal Do Not Call list, but if you rely on a copy of the national list, make sure it is no more than three months old.
Send Messages Only During Normal Business Hours
You must not call or text a contact before 8 a.m. or after 9 p.m. local time. Make sure “local time” is where your recipient is located, not where your texts originate.
Read When Is the Best Time to Send Bulk SMS?
Exceptions to TCPA Guidelines
While TCPA compliance is essential for most businesses engaging in SMS marketing, there are specific exceptions to TCPA guidelines that apply to certain industries and scenarios:
- Financial institutions
- Healthcare providers and pharmacies
- Non-profit organizations
- Emergency notifications
- Transactional texts
Financial Institutions
Financial institutions like banks and credit card companies may send transactional messages, like account alerts, without requiring express written consent. However, marketing messages still need permission.
Healthcare Providers & Pharmacies
Healthcare providers can use SMS for appointment reminders and healthcare-related information. They must also comply with additional privacy regulations like HIPAA (Health Insurance Portability and Accountability Act).
Likewise, pharmacies can send prescription notifications to their customers via SMS.
Non-Profit Organizations
While TCPA regulations generally apply to for-profit businesses, tax-exempt non-profit organizations and political organizations have certain exemptions when communicating with their members or supporters.
Emergency Notifications
Recognizing the critical nature of emergencies, TCPA guidelines exempt organizations, including government agencies and healthcare providers, from sending urgent alerts and notifications without prior express consent.
These notifications can include severe weather alerts, public safety announcements, and healthcare-related emergency messages.
Transactional Texts
You do not need to collect express consent for texts directly related to the customer’s account or services. For instance, you can send customers text messages telling them that their password has been changed, an order was received, or their package was delivered.
However, those messages can’t contain any marketing message or material. Unless you can get express consent for the marketing content, they must be strictly business. Once you have express permission, you can begin your SMS marketing campaign.
What Are The Penalties For Violating The TCPA?
If you think it might be easier to ask for forgiveness than permission, think again.
Messing with the TCPA is no joke. Penalties associated with statutory damages from violating it can cost you $500 per call — or even $1,500 per call if it’s determined that you willfully violated the rules.
Class action lawsuits related to TCPA violations can be awarded millions of dollars, which is not worth the risk of trying to sneak around the rules in marketing.
TCPA Best Practices
Now that we’ve covered the central tenets of TCPA compliance, let’s review some TCPA best practices to ensure your bases are covered.
- Train and re-train employees
- Remind customers how to opt out once a month
- Send out customer service information once a month
- Include your company name
- Disclose fees associated with SMS opt-ins
- Be upfront with your intentions
Train and Re-Train Employees
Just because you understand how imperative it is to stay in line with TCPA compliance doesn’t mean your employees will. That’s why you must educate them on the rules and why your business must remain in compliance.
Re-train employees annually to remind them of best practices and to capture new hires in the training process.
Remind Customers How To Opt-Out Once a Month
The FCC mandates that you give customers frequent opt-out opportunities to stay in TCPA compliance. A good practice is to allow customers to opt out once a month.
Fortunately, this doesn’t have to be an awkward, standalone opt-out message. Instead, it can simply be a line at the end of a promotional text message reminding customers that they can opt out if they choose.
Hi [First Name],
We wanted to offer you 20% off this month for the holidays! Reply Y to book an appointment.
[Company Name]
P.S. Not into receiving texts? Reply STOP to opt out.
Send Out Customer Service Information Once a Month
Like any good marketing campaign, SMS marketing is most effective when you’re genuine in communicating and supporting your customers. One of the easiest ways to do so is to make your customer service email or telephone number easily accessible.
For instance, let’s say your company is a wealth management firm. You might send a text such as:
Hi [First Name],
Don’t forget to talk to your advisor by [Date] to make tax-efficient IRA contributions before the year's end! For assistance with this transaction, contact our customer service team at [Phone Number]
[Company Name]
Include Your Company Name
Be sure to include your company name in every text. There’s no guarantee that your customers have saved your information on their phone as a contact, so it’s always a professional courtesy to include your company name. As a bonus, it keeps you TCPA-compliant and helps you engage your customers.
Disclose Fees Associated With SMS Opt-Ins
Before you send customers SMS messages, explain any possible fees for receiving your texts. While most people are on unlimited texting plans, you may have customers who aren’t.
If someone is still on a limited plan, the last thing you want is for them to get charged extra to receive a text message from you. Like many of these best practices, simply being considerate of your customers will help you stay TCPA compliant and build rapport with them.
Hi [First Name],
Thank you for scheduling an appointment on [Date] at [Time]. You have opted-in for text reminders; charges from your carrier may apply. To opt-out, reply ‘S’ to this message.
Be Upfront With Your Intentions
If you have an ecommerce business and collect phone numbers at checkout, you must disclose if you plan to use their number for marketing communications.
If a customer thinks they’re just supplying a number to aid in their checkout experience and then gets unwanted texts from your company, they won’t be happy about it. Therefore, it behooves your company (and customers) to disclose your intentions for taking their phone numbers.
Reach Your Customers with Texting Base
Staying in line with TCPA compliance rules is crucial for protecting your business and keeping customers engaged. But TCPA compliance doesn’t have to be difficult if you follow these rules and best practices.
Texting Base is an SMS marketing platform that provides simple SMS and MMS solutions for businesses of all sizes. Our user-friendly, affordable platform is ideal for many industries, including in-store and online retail, radio stations, schools, restaurants, real estate, enterprises, nonprofits and many more.
Reach out today for a trial of our platform.
