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Making Sure Your SMS Campaign is in Compliance with the Telephone Consumer Protection Act (TCPA)

February 12, 2018
Alexis Wilke

A large set of Stop Spam signs that have the shape of an octogone just like a traffic stop sign. When you start communicating with a potential client, you must make sure that they agree to it. This is true with phone calls, faxes, emails, and now it includes texting. With Social Media platforms, it is probably similar, although I don't know of a Social Media platform that does not allow you to block another users, so it is taken care of, generally speaking. However, I still see Social media platforms which do not give you the option to report someone. Blocking is not enough in some situation. Oh well...

Telephones and Fax Machines

I'm sure you experienced such problems with phones and often times there is no option to unsubscribe from their system. If you have a fax machine, same thing. They will happily send you faxes, but no ability to stop the campaign. As far as I know, these requirements are in force even when you create a marketing campaign targetting businesses.

For a while we had the "Do Not Call List". However, it does not seem to be too effective anymore. My phone is not on it, my wife's phone is. Both phones receive about the same number of unwanted marketing calls.

Emails

For emails, you probably already know that you have to include a way for your audience to be able to contact you and also a link to unsubscribe from an email campaign. These requirements are part of the CAN-SPAM Act (CAN-SPAM stands for "Controlling the Assault of Non-Solicited Pornography And Marketing".) The latest version is from 2008. This document was probably used as a starting point for the texting law.

Although this act works in stopping legal spam, it has not really reduced unwanted spam one bit. I haven't tried lately. but about 10 years ago our mail server anti-spam code was not installed for nearly 24 hours. I received well over 10,000 emails. Just thinking about it, how long would it take me to read that many emails if I wanted to?! I think it is sad that so many so called email marketers still send such garbage in such numbers when they should know by now that way more than 99.999% of their email pieces get discarded really early on by mail servers. Going straight to the trash and not ever having a remote chance of being read by anyone.

Texting

The new guidelines are for texting are called the "Telephone Consumer Protection Act" or TCPA.

Obviously, if you are reading my blog post, you've got to be an Internet Marketer who is looking into using text messages to contact people. You are the exact target of the TCPA document and the following will highlight various important points.

Actually, an interesting aspect of this Act is that it also applies to phone calls that use automated dialing (opposed to calls the marketer dials by hand.) It especially applies to phone calls where the callee has no chance of talking with anyone. The call is a preregistered marketing spiel and pushing any number does nothing. It's just to inform you. Right?

TCPA Requirements

The following are the basic requirements. Please make sure to check with your legal counsel to confirm that these requirements apply to you and that there aren't others that you also need to follow. I may have missed several requirements that are more than important, too.

Prior Consent

You are expected to have anyone who you want to automatically text clearly consent to the use of their phone number for said texts. The consent has to be done prior to texting and it has to be in writing as per the E-SIGN Act.

On the Internet, in writing means that the person fills out a form, sends an email with their consent, or even initiates the texting on their own. Of course, you can always have them sign a paper document or a get an electronic signature over a point of sale (your cashier would handle that one if you have a brick and mortar business.)

If you don't get a clear consent, then you're not compliant. It is important that the consent be unambiguous.

If you also plan to send them marketing messages over the phone, this is also the time to tell them. Again, it has to be crystal clear.

Further, this consent is only to receive the marketing pieces. It's not accepting a sale. That is, if you are making a sale and asking the person to surrender their phone number along the way, you should let them know that either the phone number won't be used for marketing or if it's going to be used for marketing, then let the purchaser know, unambiguously. However, the consent to also enter their phone number must clearly not be a consent to additional sales. This makes it complicated so I would suggest you avoid such. Make it a two pages form or something like that to simplify the process and make sure it is clear to the user. First complete your sale and second ask for the phone number "for further marketing".

The expected phrasing should look something like this:

"By participating, you consent to receive text messages sent through an automatic telephone dialing system."

Note that it's expected that the information about the use of the phone number for marketing purposes is going to be next to the field where you collect the user phone number.

Note that this means you are not supposed to send a first text message for the consent, although I've seen many doing such and I think it's probably okay, although it's a fine line. You want to make sure with your counsel that it would not get you in trouble. For sure, if you don't have a written consent before you send that first text message, make sure that the first text message is the consent.

Condition of Purchase

When asking for the consent, you can't at the same time ask the user to consent to a sale and to receive further marketing pieces.

So in other words, as mentioned above, the consent can't be a condition of purchase. However, if you ask for the phone number after a purchase, letting the customer know that you will be sending further great deals they are likely to be super interested by, you'll be just fine. There are no reasons that people who already purchased from you would not get the privilege to receive further text messages from you with those specials. Obvious, here or anywhere else, they have to consent to receive those messages in writing.

http://blog.textit.in/ensuring-your-sms-messaging-service-complies-with-fcc-regulations-tcpa
 

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