texting in the rain

Some digital marketers may be surprised to find out how much a law put on the books in 1991 still regulates what they can and can't do on mobile.

The Telephone Consumer Protection Act (TCPA), signed into law in 1991 and most recently updated in 2015, limits the use of automatic dialing systems and text messages for telemarketing purposes without prior consent. 

Specifically, the TCPA restricts your company from sending unsolicited, automated marketing or sales-related communications to customers with a few exceptions — in certain scenarios like emergencies or communications for non-commercial purposes, or if a customer has given prior express consent. And before you plan your next campaign to coincide with your customer's morning cup of coffee, remember the TCPA also limits outbound communications to specific times of day, namely 8am to 9pm. 

When contacting customers, the TCPA requires that your company identify itself. However, if your text interaction is purely person-to-person, or initiated by a human, this falls outside the bounds of TCPA. (Nevertheless, these transactional messages should still aim to follow TCPA guidelines.) 

Failure to follow any of the rules outlined in the TCPA can result in the Federal Communications Commission fining your business $1,500 per infraction and opens your company up to possible legal action and settlements.

Three best practices can help you ensure you’re complying with TCPA guidelines. While not exhaustive, they're a good place to start:

Create an Appropriate Call to Action 

When a customer signs up for a text messaging program, your company must make it “clear and conspicuous” that the customer will be receiving messages from an “automated telephone dialing system” in the future. In addition, the original text of the TCPA required that pre-recorded calls 1) identify the business calling and 2) state the telephone number or address of the business calling. 

Mobile best practice: The CTIA is another organization that regulates mobile customer communication. Per guidelines from the CTIA, you should state the name of your company, the frequency of the calls/texts, terms and conditions, support information, opt-out instructions, the phrase “Message and data rates may apply,” and the service description in any marketing materials for a mobile program. Remind customers of all of these things when they opt-in to the program so they’re understand what they signed up for.

Require Prior Consent 

According to the TCPA, your company cannot reach out to customers without their prior consent. The FCC updated this to “written consent” in 2012 to account for channels such as text message, web forms, emails, etc, in accordance with the E-SIGN Act. In addition, your company cannot use an automatic telephone dialing system without this prior consent. The one exception to this rule is for messages sent for emergency purposes. 

Mobile best practice: Include an opt-in/opt-out strategy, preferably double opt-in. While not explicitly required by the TCPA, having customers perform a double opt-in provides an additional level of assurance against potential class action lawsuits. Once customers text you, ask them to confirm they want to continue receiving messages from you. Even having them text back a simple “Yes” is a good way to do double opt-in.

Include Opt-Out Instructions

When sending a marketing message or making a call to a consenting customer, your company must include instructions on how to opt-out (i.e. “text STOP to unsubscribe”), along with a help link to terms and conditions. If a recipient asks to be taken off a campaign, you must comply within 30 days. 

Consumers that opt-out are taken off a campaign, then added to a no-call list, meaning a company cannot contact them again. However, providers can send one last message after the opt-out (i.e. “You have been unsubscribed from WeatherWatch alerts”). 

Mobile best practice: As mentioned above, include instructions for how to opt-out in marketing materials, as well as in the first message customers receive once they’ve opted in. A periodical reminder of how they can opt-out doesn’t hurt as well. This also applies to transactional messages. 

In the end, your business needs to create a balance between the right user experience and protection against possible legal action. While the latter is the worse case scenario, many organizations adopt a minimalist adherence to the TCPA rules and experience no issues, while other companies follow stricter adherence and still find themselves in a lawsuit.

The practices outlined above will help your company stay on the rights side of the TCPA, but consult your messaging provider and corporate legal team for further guidance on best practices. While these rules may seem daunting, complying with the TCPA is manageable once you've started and will allow your business to get the full value of mobile communications.