Introducing the FCC
With regards to text and email marketing, the FCC regulates the laws put in place to protect consumers against spam. FCC stands for the Federal Communications Commission and is an independent agency of the United States government, created to regulate interstate and international communications by radio, television, wire, satellite, and cable. Their regulations impact all 50 states, the District of Columbia, and U.S. territories.
The TCPA and the CAN-SPAM Act
There are two primary laws by which the FCC regulates text and email marketing spam. They are commonly known as the TCPA and CAN-SPAM. While these laws weren’t necessarily written with SMS marketing in mind, text messaging has been included under the same regulations as telemarketing and auto dialers. Both laws are detailed below.
Telephone Consumer Protection Act (TCPA)
The TCPA was passed into law in 1991 and restricts unsolicited telemarketing calls, faxes, pre-recorded calls, and SMS text messages (codified as 47 U.S.C. 227). It was modified in October of 2013 to require businesses to get prior written consent in order to send text messages to customers for marketing purposes. Emails also require consent but are much less regulated and consent can be given verbally.
In short, the TCPA prohibits text messages sent to a mobile phone from an auto-dialer unless (1) you previously gave consent to receive the message or (2) the message is sent for emergency purposes.As of October 16, 2013; prior express written consent is required for all text messages sent to cell phones for marketing purposes.
As of October 16, 2013, the TCPA applies to both voice and SMS text messages if they are transmitted for marketing purposes. These significant changes are as follows:
|New Rule||Effective||What is the new requirement?|
|Prior express written consent||October 16, 2013||Unambiguous written consent required before telemarketing call or text message. Exception: calls that are manually dialed and do not contain a pre-recorded message are exempt from the TCPA.|
|No “established business relationship” exemption||October 16, 2013||Established business relationship no longer relieves advertisers of prior unambiguous written consent requirement.|
Consumer consent must be unambiguous. It may be tempting to capture consent for one type of message, such as text receipts, and then send another type of message, such as marketing messages. Avoid this temptation as you may get burned. FCC regulations require businesses to get unambiguous consent and provide clear details of the purpose of the messages consumers are signing up for. Try a positive phrase like “join our text list for our best offers and updates!”
Consent must be unambiguous, you cannot ask for permission to send text receipts and then start sending marketing messages.
Controlling the Assault of Non-Solicited Pornography and Marketing (“CAN-SPAM”) Act
The CAN-SPAM Act supplements the regulations outlined under the TCPA and bans unwanted commercial email messages sent to your mobile phone. According to the FCC, The CAN-SPAM Act defines commercial messages as those that primarily advertise or promote a commercial product or service.
The FCC’s ban does not cover “transactional or relationship” messages—that is, notices to facilitate a transaction you have already agreed to. Examples of this might be messages that provide information about an existing account or warranty information about a purchased product.
The FCC’s ban also does not cover non-commercial messages, such as messages about candidates for public office or email messages that you have forwarded from your computer to your wireless device. Federal rules do require you to (1) clearly identify the email as a solicitation, (2) provide easy ways to reject future messages from the sender and (3) contain a legitimate return email address and postal code.FCC bans are mainly for commercial messages, defined by the CAN-SPAM Act as “those that primarily advertise or promote a commercial product or service.”
All commercial messages must allow the receiver to revoke their authorization and opt out.
Text and email marketing providers should supply a convenient way to opt-out, similar to the way customers opt-in. Once a customer opts-out, senders have 10 days to honor requests to opt out. Once opted-out, the sender must keep an ongoing log of opt-out data to ensure recipients don’t receive future messages.
The most common opt-out methods for text and email include replying “STOP” to quit (text messaging) and a single-click “unsubscribe” link at the bottom of an email. Click here to learn why customers are opting out of messages.
Steps to Take to Keep You on the Right Side of Regulations
1. Send a confirmation text when a new contact joins.
When a new contact subscribes to your marketing list, it is a common best practice to send an automatic response. This response should include (1) the name of your business, (2) the types of messages you will be sending, (3) the amount of messages you will send each month, (4) a statement that no purchase is required, (5) a warning that standard message and data rates apply, and (6) clear instructions to opt-out. How do you squeeze all of this into a single text? An example opt-out message is shown below.EXAMPLE CONFIRMATION TEXT: “You’ve joined ‘Joe’s Diner’ offers & updates. 2-4 msg/mo, no purch req. Std msg&data rates apply. Rply STOP 2 quit. (Powered by citygro.com)”
2. Always include the fine print when promoting your text list!
I realize the fine print may put a damper in your perfect design, but you won’t be complaining when your shortcode doesn’t get shut off (true story). While I find it odd that we need to sign post EVERYTHING in today’s world, I’ve also learned to accept it. Get in the habit of adding the following details everywhere you post your keyword or allow people to sign up for your text/email programs.
- A description of the program.
- The shortcode or phone number you will be sending from.
- The phrase “Msg & Data rates apply.”
- A number of messages participants will receive.
- Instructions to opt-out.
- Contact and support information
3. ADD FINE PRINT ANYWHERE YOU ARE PROMOTING YOUR SMS TEXT CLUB:
What are the penalties for failing to comply with TCPA and CAN-SPAM?
While the FCC claims not to award individual damages to spam recipients, they do have the ability to issue warning citations and impose significant fines to companies violating or suspected violation of the rules. The TCPA provides for either actual damages or statutory damages ranging from $500 to $1,500 per unsolicited message and is highly dependant on whether the sender is found to have “willingly” or “knowingly” violated the laws.
One of the most well-known accounts of businesses getting fined for breaking TCPA rules is the case of Papa John’s in early 2013, who paid roughly $16 million to settle a class-action lawsuit. At the end of the day, consent is everything.
Now that you know the rules, are you communicating too much? Not enough? Learn the best practices for text and email marketing.
Sources and helpful sites:
This post’s content was updated on August 9, 2017. It is not intended for legal advice but should be used as a guide for complying with FCC regulations.