Text messages can be an extremely effective way to reach customers. Text messages have a 98% open rate. They get seen. SMS messaging also boasts a significantly higher click-through rate versus any other digital marketing channel. As many as 60% of consumers see texts within the first five minutes of receiving them. Text messaging is a powerful tool for marketers.
However, marketers must ensure they are following the laws and industry guidelines. When choosing a text message service for business, make sure you work with a marketing partner that understands text messaging laws and can help you navigate them.
The Telephone Consumer Protection Act
The Telephone Consumer Protection Act (TCPA) enacted by Congress, was updated by the Federal Communications Commission (FCC) to include text messaging for marketing purposes. Following similar rules for telemarketers to restrict unsolicited phone calls, the FCC requires businesses to adhere to these guidelines for unsolicited text messages as well.
- Identification: Companies must identify themselves and the reason for the contact
- Hours: Communication should not occur outside of 8 am and 9 pm local time
- Opt-out: All text messaging must allow consumers to opt-out of future tests by replying directly to the text.
- Prior consent: Organizations may not contact customers without expressing prior express
Written consent
Consent is a tricky thing. If someone does business with you, you may have implied consent, but it may not meet the threshold for expressed prior written consent. To meet this litmus test, you need an affirmative opt-in agreeing to receive texts for marketing purposes.
The CAN-SPAM Act
The CAN-SPAM Act may conjure up images of cans of spiced ham, but it’s really about regulations instituted by the Federal Trade Commission (FTC) and stands for Controlling the Assault of Non-Solicited Pornography and Marketing Act to combat unsolicited email messages.
While the CAN-SPAM Act does not explicitly include text messages, marketers should apply the principles of the Act. These include:
- Do not use false or misleading information about the origination
- Don’t use deceptive claims or messages
- Identify the message as an advertisement
- Tell recipients how to opt-out of future communications
- Honor opt-out requests promptly
If you are using a third party to handle your marketing, you are still responsible for their actions. The FTC says you cannot delegate your responsibility. In other words, if a marketing agency you hire violates the law, you can be held responsible.
The Cellular Telecommunications Industry Association (CTIA)
Messaging Principles and Best Practices from the Cellular Telecommunications Industry Association (CTIA) is a set of guidelines rather than laws, but marketers should also take into account the recommendations.
CTIA is a trade organization representing the biggest names in the wireless industry. Organizations that violate CTIA guidelines can find themselves blocked from texting through major carriers.
Much of what is contained within the CTIA’s best practices is included in the TCPA, it further clarifies this issue of consent. The CTIA’s principles, for example, include three specific conditions when it comes to consent:
- Obtain consent to receive messages
- Obtain express written consent to receive marketing messages
- Ensure consumers can revoke consent.
All three conditions must be met under the CTIA’s best practices.
If a consumer provides a phone number to a business and asks to be contacted, consent is implied for actions related to that first contact. This might include appointment reminders or welcome texts. If a consumer sends a text requesting a price, for example, a business could respond with the price. Under these guidelines, however, they cannot then follow up with marketing messages about non-related items. The TCIA guidelines prohibit the sending of general marketing texts unless the consumer has agreed to receive texts for general marketing purposes.
Before a business can send a promotional message, the consumer must agree in writing to receive promotional marketing messages.
The opt-in has to be clearly defined as well. It should include:
- The program or product description
- The phone number or code used for originating the message
- The identity of the organization used in the initial message
- “Conspicuous language” about any fees or charges
- How to opt-out and any other applicable terms, such as privacy policies
When companies do receive written opt-ins, they should be documented and retained, including timestamps, IP address used to grant consent, phone numbers, and identity of those granting opt-ins.
After the consumer has opted in to receive messages, companies that plan to send recurring texts need to provide consumers with a confirmation message that lets them know they are enrolling in an ongoing campaign and tells them clearly how to opt out of future communications.
An opt-in to receive messages is not transferable or assignable. “A Consumer opt-in should apply only to the campaign(s) and specific Message Sender for which it was intended or obtained” per the CTIA.
State Laws
Navigating consumer privacy laws as it pertains to SMS marketing can be complex. Who data is handled, stored, and sold to third parties is also a concern. Laws such as the California Consumer Privacy Act (CCPA) places restrictions and notification requirements on data handling to protect consumer privacy.
It’s only going to get more complicated for marketers. More than 30 states have passed or introduced legislation or have legislation pending that impacts consumer rights and business obligations.
Interesting Related Article: “How SMS Marketing Boosts Customer Relationships“