16th - May - 2016

TCPA – What You Need to Know When it Comes to A2P SMS

In our last blog post we shared the news about Donald Trump’s presidential campaign facing a couple of lawsuits claiming TCPA violations regarding text messaging. So, this week we thought it would be good to go through a quick refresh of TCPA, what is it, and what it stipulates when it comes to sending A2P SMS content.

TCPA is the abbreviation for the Telephone Consumer Protection Act (1991) and it is overseen by the FCC (Federal Communications Commission). The TCPA is an amendment to the Communications Act of 1934 and is focused on establishing regulations regarding telemarketing calls, at a time where many households were bombarded, especially during the dinner hour by solicitation calls by humans and “non-humans”, i.e., robocalls.  Since 1991 there have been updates, clarifications and definitions extended most notably in 2003 when the definition of a “call” was extended to include text messaging. The most recent updates and clarifications were made in July 2015 in a declaratory ruling.

In regards to text messaging, the TCPA makes it very clear that permission is required and cannot be assumed, permission must be given explicitly by the mobile consumer. The one exception is the clarification made last July, of a one-time-on-demand-text for-information text, where upon the request from the mobile subscriber a one-time-information text message can be sent. It is important to understand the message body sent can only contain the content that was asked for, and no other, specifically promotional information can be sent.

Other highlights from the July 2015 declaratory ruling include further clarification on the following:

  1. Opt-out - the TCPA requires only that the called party (in this instance the mobile subscriber who has been receiving text messages) clearly expresses his or her desire not to receive further call (where calls in this context refer to text messages).  This means, that in addition to texting any STOP keyword, the called party can provide their request to opt-out verbally including live or recorded as well as in writing including electronic and written correspondence.

  2. One-time safe harbor - in light of mobile subscribers changing their numbers, the TCPA grants a one-call-exception (this means either a call or text) to discover whether the number has been reassigned.  Further calls could be deemed to violate the TCPA.

  3. Exemptions for free to end user (FTEU) messages - the content of the FTEU exempt messages include: Time-sensitive financial communications, Healthcare related notifications, and Package delivery notifications.

Now that we have provided a background of what TCPA is and how it governs A2P SMS text messaging, here is a list of best practices:

  1. Get Permission - get your customer’s consent, obtain your customers’ prior express written consent (PEWC); this includes validating mobile number ownership when opt-in is captured outside of an SMS exchange, for example using a web form to start the opt-in process. And incorporate a double opt-in mechanism for all on-going messaging campaigns.

  2. Groom Opt-in Database - keep your opt-in database accurate by adding new opt-ins once PEWC has been obtained, removing entries once an opt-out request is made, and to scrub your database against deactivated and disconnected mobile number lists.

  3. Make it Clear - in your call to action for example texting a keyword to short code or signing up through a web form, make it very clear to your customer what it is they are signing up for and include links to terms of service and privacy policy. Transparency is key and telling the customer what to expect is required including how and where to get help if they need assistance, and provide easy and clear mechanisms for opting-out.

Being respectful is paramount, especially given the “intimacy” of mobile communications, including text messaging.  It’s no wonder SMS is considered very personal and carries a high open rate.  We are always connected with most of us having our mobile phones just mere inches away even as we sleep at night.  Understanding that the communication channels marketers and businesses have at their disposal carry varying degrees of priority is very important. So yes, send SMS, but use it wisely, thoughtfully and compliantly.

Additional Resources:

FCC July TCPA Order

FCC Fact Sheet Discussing the Order

Small Entity Compliance Guide to the 2012 TCPA Order

The information on the Mblox blog is not intended to constitute (nor does it constitute) legal, compliance or professional advice of any kind.

Readers of the Mblox blog are responsible for seeking their own independent legal, compliance and professional advice.

Originally posted on mblox.com

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