The Telephone Consumer Protection Act of 1991 was originally created to regulate telemarketing practices. It’s constantly being updated to adapt to changes in technology and how business is being conducted. The TCPA now includes amended sections to include SMS marketing communications and is overseen by the FCC (Federal Communications Commission).
The TCPA exists to provide consumers with protection against unwanted, spam, and illegal communication.
The TCPA outlines 5 requirements that businesses or commercial entities should follow to be in compliance:
- Obtain express written consent from the customer (more details below)
- Entities must clearly identify themselves and include a contact number for an easy way for consumers to opt-out. This is usually done by letting them know they can reply with “STOP” to terminate further communication efforts
- Send text messages or place calls between 8 a.m. and 9 p.m. Noting your customers’ specific time zone
- Include verbiage notifying customers that standard messaging and data rates apply
- The terms and conditions should be displayed/provided in a conspicuous manner
For creative entrepreneurs, it’s important that wherever you obtain the opt-in, the information above is communicated and displayed clearly. This includes your —website, social media, email, in-store, in-person, etc.
You’ll want to ensure you are doing this 100% at all times BEFORE sending anyone a text.
Your business/brand falls under the Non-Consumer (A2P) Messaging category if you plan on using an SMS application/software like SUBFLOW to send communications to businesses or customers.
There are 3 types of messaging content that require different levels of consent. The 3 types of messages include:
- Promotional (ding ding! The one you’ll want to focus on)
Let’s take a look at MrBeast Burger, a virtual restaurant model that partners with local restaurants, and how they’re in compliance while using SMS. This’ll help illustrate what it means to obtain “EXPRESS WRITTEN CONSENT” online.
The TCPA compliance test:
- Obtain express written consent from the customer.
✅ Check! The form states “By submitting this form you agree to receive recurring automated promotional and personalized marketing text messages…”
- Entities must clearly identify themselves and include a contact number consumers can opt-out of. This is usually done by letting them know they can reply with “STOP” to terminate further communication efforts.
✅ The third sentence states, “Reply HELP for help and STOP to cancel.”
✅ It’s clear that this form is for consumers interested in promotional information regarding MrBeast Burger.
- Send text messages or place calls between 8 a.m. and 9 p.m. noting your customers’ specific time zone.
✅ This one is not necessarily something they need to disclose to obtain written consent. But it should be something they practice when sending out their messages.
- Include verbiage notifying customers that standard messaging and data rates apply.
✅ The fourth sentence clearly states, “Msg and data rates may apply.”
- The terms and conditions should be displayed/provided in a conspicuous manner.
✅ The last sentence provides clickable links to their Terms and Privacy policies they can easily click and read.
Looks like MrBeast’s SMS capture form satisfies the TCPA compliance test!
You’ve probably encountered many of these “Express Written Consent” forms across the web or in person by scanning a QR code at a local store.
There’s one more organization with some skin in the game worth mentioning though, and that’s the CTIA.
The Cellular Telecommunications Industry Association (CTIA) represents the U.S. wireless communications industry. It includes companies and entities ranging from mobile app creators, mobile carriers to content creators.
They’ve also compiled their list of best practices in support of TCPA’s requirements.
Here is the link to their Messaging Principles and Best Practices resource
They add that SMS senders should include the following:
- Have only one clear Call-To-Action (CTA)
If you’re sending a promotional message, make sure that your product description is simple and obvious. You’ll want to include the privacy info link, opt-in fees, or charges in a concise manner.
An important thing to note is that the consumer’s consent to one campaign does not mean they’re eligible for other future campaigns. To maintain the integrity of the relationship between your brand and the consumer, provide the user with relevant SMS messages for what they signed up for and nothing else.
2. Consumer opt-in confirmation message for recurring messages
After a user provides express written consent by filling out the online form, you’ll want to automate a confirmation message. When compared to email marketing, this is equivalent to a double opt-in. You’ll send a message stating they’ve signed up for X product or campaign. To confirm receiving recurring messages you’ll have them reply with a short code like “YES” or a “1”.
3. Frequency of messages
Another element you’ll want to include in your Express Written Consent form is the frequency consumers can expect to hear from you.
If you’re a course creator using SMS to communicate with your students, explaining how often they’ll hear from you could be helpful so interested users know what to expect.
Avoiding Expensive Fines
Aside from breaking the law, not being in compliance comes with serious fines. With many text messages being sent at once even one mistake can add up quickly.
Fine Formula: Whatever the fine is X the # of messages sent out = FAT fine. More details on how to avoid fines later.
This information isn’t to discourage users from implementing SMS marketing, but rather to empower businesses and brands to feel confident using this powerful platform.
Feel free to analyze and follow the example from MrBeast above to ensure you’re checking every compliance box.
These forms are prevalent when we’re surfing the web on community pages, product, or service websites. Chances are, you didn’t even read all the fine print when signing up to receive SMS messages from your favorite brand.
Use this checklist to ensure your Express Written Consent form is compliant.
• The online form should be completed by the person giving consent
- The message must clearly let the user know that they’re signing up to receive promotional messages from your business/brand
- The business should be easily identifiable to the user
- Provide accessible links for terms and conditions and privacy policies users can click on
- Inform users that messaging and data rates may apply
- Create an automation workflow to message new users to confirm receiving recurring messages
Here’s another example of a template provided by Business.com Just ensure to add your brand’s personality and pertinent information.
SMS marketing is a highly effective tool you can leverage to connect and communicate with existing and new customers. As creative entrepreneurs, implementing a strategy that provides you with the opportunity to personalize and control your customer or student experience is worthwhile. You’re now equipped with the knowledge to confidently create a compliant SMS campaign.
As you move forward with your SMS marketing campaign, you’ll want to ensure you choose a reliable and compliant platform like SUBFLOW. We offer a user-friendly dashboard where you can monitor and create unlimited paid and free SMS memberships and campaigns. You’re empowered to create and send messages with confidence for your business or brand.