What Is the Most Accurate Statement About Liability and Legal Issues Related to Text Messaging?
The Complete SMS Compliance Guide.
Overview
SMS marketing and mass texting has become a foundational component for businesses and organizations looking to engage with their audiences. Laws and regulations governing text messaging are likewise far different than those of other channels. Penalties for non-compliance are much greater which is why understanding SMS compliance is critical.
While maintaining a compliant text messaging program may seem difficult, it'south really not. The purpose of this guide is to provide a detailed overview of text messaging compliance and lay the foundation for a solid SMS marketing strategy.
Please annotation that all information plant in this guide is for informational purposes only and is not intended to constitute legal advice.
Who Makes The Rules
Earlier diving into the texting laws and compliance guidelines, it's helpful to sympathise where they come from and who'southward responsible for maintaining them. In the United States, in that location are two core entities that you should exist aware of.
The TCPA
The TCPA stands for "Telephone Consumer Protection Act" and is the federal legislation (originally written in 1991) that governs telemarketing, text messaging, and the Do-Not-Call listing. While these laws don't explicitly mention annihilation most SMS, it'southward been ruled that texts are treated as phone calls under the TCPA. These laws exist to protect people from unsolicited text messages and phone calls.
The CTIA
The CTIA stands for "Cellular Telecommunications Industry Association" and is a merchandise grouping that represents wireless carriers and others in the telecom industry. The CTIA maintains the Short Code Monitoring Handbook which lays out additional guidelines for SMS marketing. The CTIA's guidelines align with TCPA laws to protect people from unwanted text letters but extend further to aid marketers create a meliorate experience for consumers.
Text Message Laws
While both TCPA and CTIA guidelines should be strictly followed, it's of import to draw the stardom betwixt what's law and what'southward regulation. There'due south a lot of overlap between the 2 however you lot can view the TCPA equally federal laws preventing unsolicited text messages and CTIA guidelines as carrier regulations farther protecting consumers.
When information technology comes to texting laws, even so, TCPA legislation is what matters. The major theme of the TCPA is that you must obtain express written consent from people before sending them promotional text messages. Failure to exercise then can trigger large course-action lawsuits and penalties of upward to $500 per text. The practiced news is that getting consent isn't that hard.
Fundamental Takeaway
TCPA compliance is following texting laws and CTIA compliance is following the guidelines set along past the cellular carriers.
Express Written Consent
As divers in the TCPA, express written consent is permission given past someone on newspaper or electronically to receive promotional letters via an autodialer.
At present you might exist thinking, "What'southward an autodialer? I'm non using an autodialer?" Our perspective is that there's too much hands-on involvement when using SMS marketing software like SlickText for information technology to be considered an autodialer. The problem is that TCPA legislation was written over twenty years ago and courts today struggle to understand how software similar SlickText applies to such an quondam definition. For this reason, information technology'southward mostly recommended to err on the side of caution and assume that whatever service yous're using to send text messages is an autodialer and that you need limited written consent.
Obtaining Express Written Consent
Obtaining express written consent really isn't that hard. Remember, the TCPA definition allows for permission to be given electronically. This could be in the form of recorded verbal consent, checking a box on a web form, or simply texting a keyword to a phone number (provided the keyword telephone call to action has some specific verbiage.) This opens up several options for capturing consent in a compliant way.
Collecting opt-ins via text to bring together and spider web forms are the two nigh pop ways to obtain limited written consent. We'll cover those opt-in methods in more detail below.
Key Takeaway
Express written consent can be given electronically which makes text to join and web forms two like shooting fish in a barrel means to collect opt-ins in a compliant way.
Messaging Types
At present that we understand basic texting laws and the concept of express written consent, we'll embrace the three types of text messaging content. These are important concepts as each requires a different level of consent provided by the consumer.
Conversational Messaging
Conversational messaging is exactly what y'all might call back. It's the back-and-forth texting betwixt a consumer and a business organization in real time. If the consumer starts the chat by sending an initial SMS to a business and they answer, this is considered to exist conversational.
The consent level associated with conversation text messaging is what's known every bit implied consent. Since the consumer is initiating the conversation, it's implied that they are expecting a dialog and no real permission is required.
Informational Messaging
Informational, also referred to as "transactional" messages, are non-promotional text messages that communicate important information. Some examples of transactional messages include date reminders, welcome texts and aircraft notifications.
Informational messages require express consent. Because these types of messages are non-promotional, the consumer must still requite consent but it doesn't demand to be limited written consent. Permission tin be granted by replying to a text message, filling out a form or even verbally.
It'southward worth noting that in many cases, information technology'south unclear whether a text message is considered to be informational or promotional. For that reason, we recommend that you lot obtain express written consent even in cases where you'll be sending informational or transactional letters.
Promotional Messaging
Promotional text letters are ones that contain sales or marketing-related content. Typically, if there's a link or call to activity in the bulletin, it's considered to exist promotional, however that'due south not always the case.
Promotional text messages, as mentioned above, crave express written consent. This is the highest level of consent that you tin can capture from the consumer and puts you in the best position for defense if a lawsuit ever arose.
Key Takeaway
Oftentimes it may be unclear whether a text bulletin is informational or promotional so yous should obtain express written consent in both cases.
Collecting Opt-Ins
Now that we understand the various types of messaging and the required consent level associated with each, we can dive into how to collect opt-ins in a lawful and compliant manner. As mentioned above, information technology's best to assume all of your text messaging to be promotional and that you demand limited written consent.
Let's take a look at the ii nearly common ways that SMS marketers collect opt-ins and the all-time practices for doing so in a compliant way.
Text to Join
Text to join is one of the popular ways to collect opt-ins for a SMS marketing program. Information technology works by texting a word or a phrase known as a "keyword" to a short lawmaking or phone number. When someone texts your keyword, they are opted into your SMS program. In order for the text to join process to be TCPA and CTIA compliant, a few things must exist in place.
For TCPA compliance, your call to action must disclose that people will exist receiving futurity promotional letters. It should also inform them that letters will come from an autodialer and that their understanding to receive said messages isn't a condition of purchase. Furthermore, you'll also need to provide a link to your program's terms and conditions. That'due south covered in more than particular below.
For CTIA compliance, your phone call to action must conspicuously inform consumers almost the purpose of your campaign and what they tin can expect to receive. Additionally, y'all must include how ofttimes yous'll be texting them, some information about messaging and data rates, a link to terms and privacy and how to opt out if they choose to do so.
The final component for CTIA compliance is that people who text your keyword should receive an immediate car-response that confirms their subscription. This text must include the proper name of your business, message & data rates may utilize, opt-out instructions and a link to your terms and privacy.
Here are examples of a TCPA and CTIA-compliant text-to-join call to activeness and confirmation bulletin.
The Phone call to Action
Text SlickText to 888111 to join our VIP text listing and receive weekly specials.
You concord to receive automated promotional messages. This understanding is not a condition of purchase. Receive up to 4 letters per month. Reply Finish to opt out or Aid for help. Message & information rates utilise. Terms and privacy policy can be plant at slicktext.com/tc.php.
The Confirmation Message
SlickText
SlickText: Thank you for joining our VIP text list! Stay tuned for future deals.
Up to four msgs/month. Reply Finish to opt out or HELP for assistance. Msg & Data rates may apply. Terms & privacy: slicktext.com/tc.php
Key Takeaways
- Text to join is only compliant if your CTA is accompanied past the required circumlocution.
- After opting in, people should receive an immediate, automated response confirming subscription.
- SlickText has all of the required compliance measures congenital in.
Spider web Forms
Another great fashion to capture SMS opt-ins and limited written consent is with spider web forms. Well-nigh good mass texting services offer spider web forms every bit a way to grow your list. These are simple forms on your website or landing pages that requite users the ability to input their information and sign up for your texting plan. Similarly to text to join, at that place are specific requirements needed for a grade to be TCPA and CTIA compliant.
Your class, at the very least, will have a field where people can input their phone number. Virtually businesses also offering a field or ii for them to provide their name.
For TCPA compliance and capturing express written consent, your form must have a checkbox that contains verbiage explaining that people are agreeing to receive automated promotional messages and that consent is not a status of purchase. Information technology's also of import that the checkbox is not checked by default.
For CTIA compliance, the text accompanying the checkbox must also include the messaging frequency, that message and data rates may use, opt-out instructions, help instructions and links to your terms and privacy policies.
Additionally, to be CTIA compliant, immediately after submitting your course, the consumer should receive an automated text message confirming their subscription. That confirmation text should include the name of your business, message and data rates may utilize, opt-out instructions and a link to your terms and privacy just similar with texting to join.
Here are examples of a TCPA and CTIA-compliant web form and confirmation message.
The Confirmation Text
SlickText
SlickText: Thanks for joining our VIP text list! Stay tuned for future deals.
Up to 4 msgs/calendar month. Reply Stop to opt out or HELP for help. Msg & Information rates may apply. Terms & privacy: slicktext.com/tc.php
A very of import thing to note is that while this flow is technically CTIA compliant, it withal opens up opportunities for bad actors to create problems. In this scenario, someone could input whatsoever phone number they want into your grade and subscribe random people to your text messaging plan. For this reason, nosotros highly recommend a double opt-in procedure when using web forms.
Double opt-in requires an boosted confirmation text message to be sent by the consumer after filling out the web form. This confirms that the person is who they say they are. The final opt-in catamenia looks like this…
- Consumer fills out the form, checks the box, and submits.
- Consumer is sent a text message request to ostend their subscription.
- Consumer replies YES to confirm.
- Consumer is subscribed and receives the final confirmation text message.
Key Takeaways
- Web forms require a checkbox with specific compliance verbiage.
- The checkbox must be unchecked past default.
- You lot should ever use a double opt-in process when subscribing people via web forms. This forces people to prove who they are before beingness opted in.
- SlickText has all of the required compliance measures built in.
Required Verbiage
At present that you've read through the guidelines for collecting opt-ins, you've probably noticed some common verbiage used throughout. Each is fundamental to ensuring compliance with the TCPA, CTIA and obtaining proper express written consent.
Each of the post-obit components are required wherever yous're collecting opt-ins. Permit's take a deeper wait at each and how they all come together.
Business Proper name & Purpose
Wherever you advertise your text messaging programme, you lot must make it abundantly clear who the sender is and the nature of the messages that will exist sent.
Text SlickText to 888111 to join our VIP text list and receive weekly specials ...
Automated Promotional Messages
When advertising your call to action, you as well demand to disembalm that letters will be sent via an automated method. This is key for capturing express written consent.
... You concur to receive automated promotional letters ...
Not a Status of Purchase
In improver to the agreement of receiving automatic promotional letters, you must as well disclose that their agreement to opt-in is non a status of purchase. This means that a consumer doesn't have to make a buy in order to be eligible to subscribe.
... This understanding is non a condition of purchase ...
Message Frequency
This is where y'all inform consumers nigh how often you'll be texting them. While it's best to allow them know how many texts they can expect to receive, you tin besides simply tell them that your messages will exist recurring.
... Upwards to iv msgs/month ...
Opt-Out Instructions
This is the snippet of text where you inform consumers on how they can opt out of your text program in the instance that they'd similar to. All SMS marketing and mass texting services process special opt out keywords that handle this process. Those keywords are: STOP, CANCEL, QUIT, UNSUBSCRIBE and END. When someone responds with i of those keywords, they should immediately be unsubscribed and sent one terminal response confirming their opt out was successful.
... Reply End to opt out ...
Assist Instructions
Following the opt out instructions, you should include some text that informs consumers how to get help should they need it. Just like the opt out keywords, texting services should also respond to the keyword Assist. This should return a message with a phone number, e-mail address and website that consumers can use to become aid with the text messaging programme.
... Answer HELP for help ...
Msg & Data rates may employ
This disclosure simply communicates to consumers that their cellular carrier may accuse them the standard messaging and data rates for sending and receiving SMS / MMS. Today, nearly cellular plans offer unlimited texting & data so this is not commonly an upshot.
... Msg & Data rates may apply ...
Terms & Privacy
The terminal component of the verbiage required to collect TCPA and CTIA compliant opt-ins is having a valid set of terms and weather condition and privacy policy and including links to them. While they don't normally take to exist pages and pages long, in that location are some key requirements to ensure they're satisfactory. Allow's swoop into those.
... Terms & privacy @ slicktext.com/tc.php ...
Full Compliance Verbiage
You hold to receive automatic promotional messages. This understanding is non a condition of purchase. Receive upwards to {letters per calendar month} messages per month. Reply Finish to opt out or Aid for assistance. Message & data rates use. Terms and privacy policy found at {terms and privacy link here}.
Terms & Conditions Requirements
In order to be compliant with TCPA and CTIA guidelines, you'll demand to have a set up of terms and weather for your text messaging program. Aye, we know what you're thinking… "Nobody ever reads this stuff." While you're probably correct, it'south still required.
The link to your terms and conditions must be clearly visible and not buried where they'll never be found. This is what's considered by the TCPA as the "written agreement" between you lot and the consumer.
When it comes to the actual content of the terms and weather, the CTIA requires specific information to be disclosed. This information includes:
- Business name
- Text Programme name
- The number used for the program
- Opt-in instructions
- Opt-out instructions
- Help instructions
- A list of supported wireless carriers
- Messaging frequency
- Message and data rates disclosure
- Link to privacy policy
Privacy Policy Requirements
Unlike your terms and conditions, the TCPA nor the CTIA have specific requirements for the content although there needs to be some fabric content inside. While most people don't read privacy policies, it puts consumers at ease knowing that the business concern they're interacting with maintains one.
We recommend, at the very least, making a statement about the protection of consumer data and your company's perspective on it. Additionally, for your protection, you should also include some information virtually the limits of your abilities and liability.
Controlled Content
The CTIA has boosted requirements for SMS programs that pertain to developed content or controlled substances. While content of this nature is normally subject field to scrutiny by the wireless carriers, some is immune with proper functionality in place; particularly age-gating.
An age gate is functionality that requires and confirms a person'southward age at the signal of opt in. For case, when texting to bring together, after texting the keyword, instead of immediately receiving the confirmation machine-response, you'd receive a message asking for your engagement of birth. In one case the person has replied with their age and they encounter the age requirements, they would then be opted in.
Notation that the CTIA has a zero-tolerance policy for referencing the corruption of controlled substances and volition take action on any text programs that are in violation.
Central Takeaway
Some controlled and adult content is immune however people are required to provide their date of nascency. Only those of age can be opted in.
Prohibited Content
The CTIA and cellular carriers bluntly disallow certain types of messaging content. There'south also content types that while not specifically chosen out, are likewise disallowed.
SHAFT Content
SHAFT is an acronym that stands for "Sexual practice, Hate, Alcohol, Firearms and Tobacco". Nigh messaging programs related to these types of content are prohibited withal in that location are exceptions. As an example, messaging related to sex, hate and the sale of firearms is disallowed, however the auction of alcohol and tobacco requires an age gate.
Other Prohibited Content
While the CTIA has called out specific types of content that's prohibited, it's non inclusive of all messaging content that they or the carriers disallow. Some examples of boosted prohibited content include messaging related to cannabis, CBD, loans, debt collection, get rich quick schemes, gambling, deceptive marketing, and credit repair.
Violations & Audits
There are a few dissimilar things that can happen if you're in violation of the TCPA or CTIA guidelines. Retrieve, TCPA legislation is law and violations are punishable by the federal government. CTIA guidelines, while not law, can result in the interruption or termination of your short code, phone number and text messaging programme.
TCPA Violations
As mentioned higher up, the TCPA exists to prevent unwanted text messages and telephone calls. A violation normally occurs because of unsolicited text messages, telephone calls or calls made to those on the national Exercise Not Call Registry.
TCPA violations can exist massive with penalties of up to $500 per message / call and willful violations upward to $1,500 per criminal offense. There's no cap on amercement; if a lawsuit is grade-activeness, total fines could current of air upwardly costing millions of dollars, and it's happened. Additionally, citizens aren't the merely ones that can bring deportment for TCPA violations. The FCC, FTC and land attorney generals can do and then equally well.
These violations tin can exist business-catastrophe so the bottom line is to make certain you're capturing express written consent with every opt-in.
Short Code Audits
On a regular footing, the CTIA, cellular carriers, and other auditing bodies test SMS short code programs for compliance with the Brusque Code Monitoring Handbook. An SMS programme tin can be in violation for several reasons and with a varying caste of severity. This tin can range from a lack of opt out instructions with a phone call to action to sending spam or prohibited content. When a program is accounted to exist out of compliance, it triggers a brusk code audit.
When an audit is opened, the short code owner is notified and given instructions on how to bring the program back into compliance. Depending on the severity level of the audit, the owner volition accept a specific period of fourth dimension to correct the given issues. If corrections aren't made within the specified amount of time, the short code will be suspended or potentially terminated.
Number Shutdowns
If you're using a cost-free or 10DLC number for your SMS program information technology's still imperative that you lot follow TCPA and CTIA guidelines. While in that location'due south no official audit procedure for these types of numbers like there are for brusque codes, cellular carriers, SMS aggregators, and service providers require the aforementioned level of compliance. Carriers and service providers have automated and manual processes in place to check SMS programs for compliance and shut numbers down regularly for violations.
Conclusion
At the very terminate of the mean solar day, SMS compliance is not that difficult. The gilded rule above all else is to obtain express written consent before sending text messages to people. Furthermore, exist transparent about what people tin expect to receive when joining your text program and how they can opt out if they choose to practice then.
SlickText offers everything you need to launch a compliant SMS marketing program and has all the required things built right in. From opt-in compliance circumlocution to pre-built terms and privacy policies, we're trusted past tens of thousands and ability some of the world's largest text messaging programs.
If y'all have additional questions or desire to acquire more, don't hesitate to reach out to your squad. We'd love to chat.
Please annotation that all data establish in this guide is for advisory purposes just and is not intended to found legal advice.
Source: https://www.slicktext.com/sms-compliance.php