Guidelines for using SMS messages for your Business communication

November 27, 2014
Legal Disclaimer – This document contains general guidelines and best practices collated from different sources. Though we have given our best effort to provide comprehensive guidelines by interpreting TCPA (Telephone Consumer Protection Act), Screen Magic takes no responsibility for any legal dispute arising in spite of or because of using these guidelines. Complying with TCPA (Telephone Consumer Protection Act) in USA is sole responsibility of the customer. Please consult your legal advisor if you have any doubts on whether you need to comply with TCPA. click here to view complete TCPA guidelines.

SMS has a mission critical role in modern business – many high priority applications, alerts and content depend heavily on an SMS being delivered in a timely manner. However, there are some rules and guidelines set forth by FCC for sending SMS messages. The SMS communication can be broadly classified into two – marketing messages & non marketing messages. Any company who wishes to send marketing messages need to comply with the new TCPA regulations. The non marketing messages have been exempted from TCPA regulations but it is always advisable to maintain Opt in proofs of customers.

What is the Telephone Consumer Protection Act of 1991?

The FCC implemented the Telephone Consumer Protection Act of 1991 (the “TCPA”) adopted rules, including prohibiting the initiation of telephone calls (other than a call made for emergency purposes or made with the prior express consent of the called party) using automatic telephone dialing systems or an artificial or prerecorded voice to telephone numbers assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call.

The new Telephone Consumer Protection Act guidelines going into effect on October 16th 2013 require written, auditable consent for every consumer in a mobile database whereas previously consent could be express, meaning a company had previously done business with an individual. For those marketers not already using written consent for their opt-in programs, the new guidelines will require a significant change in how they structure their programs. Any company who is sending SMS messages as part of their marketing initiative need to follow the below guidelines:

  1. You should have written consent from your customers about receiving SMS communication from you. The required written signature can be obtained via email, Web site form, text message, telephone key press or voice recording.
  2. If you used a web-form for opt-in, you should immediately send a double-opt in confirmation request to verify the handset
  3. The opt-in confirmation message you send to new subscribers should be compliant with MMA and CTA guidelines.
  4. Maintain a “unsubscribe/do not call list” and honor any request to not be called again. When such a request is received, the requester may not be called again on behalf of the business for whom the solicitation is made. Do not violate the National Do Not Call registry.
  5. Your current messaging content should be related to the original program the subscriber opted in to.
  6. Your company name/brand name should be clearly mentioned in the text.
  7. In every message you should provide the opt-out details like – “Reply STOP to opt out”. It is also advisable to mention “Msg rates may apply” to inform the customer about the cost involved in replying back.
  8. If you used a web-form for opt-in, always provide an empty check box with a link to your CTIA compliant mobile T&C’s. Have a clearly written policy available to anyone on request.
  9. Maintain single or double opt-in confirmation messages on file with a time stamp.
  10. Limit the messages to a period between 8AM to 9PM local time of customer.

The new guidelines impact every new opt-in that a marketer acquires as well as all of the existing names in their databases. The guidelines are retroactive, meaning that after Oct. 16, if marketers do not have written consent from someone already in their mobile database, they can no longer message that consumer legally.

There have been some discrepancies on the follow-up message sent for acknowledging Opt out requests. Specifically, opt-out messages do not violate the TCPA as long as: (1) the consumer has previously given express consent to receive mobile messages from the sender; (2) the confirmatory message does nothing more than confirm the consumer’s request to opt-out of receiving future mobile communications (i.e., it does not include any additional marketing); and (3) the confirmatory message is the final one sent to the consumer. Additionally, the FCC ruled that as long as a confirmatory text is sent within five minutes of receipt of the opt-out request, the message is presumed to be part of the consumer’s prior express consent to receive messages. On the other hand, if the confirmatory text is sent more than five minutes after opt-out, there is no presumption and the sender will be required to show that the delay was reasonable.

Exemption from TCPA

Non-marketing messages such as flight updates and bank balances are excluded from the guidelines. Also excluded are one-time transactions such as texting a keyword to a common short code to receive a coupon, which is delivered via a code in the responding SMS message, with no further messages sent.

A text message is exempted from the TCPA if the message:

  1. Is made on behalf of a tax-exempt nonprofit organization.
  2. Is not made for a commercial purpose.
  3. Does not include an unsolicited advertisement, even if it is made for a commercial purpose.
  4. Is made to a consumer with whom the calling company has an established business relationship. This relationship cannot be established merely by having made a prior solicitation call. The customer ends this exemption when he or her requests that no more calls/texts be made.

In case of any doubts regarding the category in which your messages fall, or whether you need to comply with TCPA, please refer the original guidelines or contact your legal advisor. You should obtain written consent from your customers for all messages where you are not sure of the nature of content.

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