Legal Disclaimer – This document contains best practices and guidelines collated from various sources. Although we have researched enough to draft comprehensive guidelines by interpreting TCPA (Telephone Consumer Protection Act), SMS-Magic is not responsible for any legal dispute arising because of or in spite of using these guidelines. To comply with the TCPA guidelines in the USA is the sole responsibility of every individual customer. If you want to know about whether you have to comply with TCPA or have any doubts, we recommend you to consult your legal advisor. Click here to view the complete list of TCPA guidelines.

In modern business, SMS plays a mission-critical role – a lot of high priority applications, content, and alerts depend on an SMS being delivered in a timely manner. There are certain rules and regulations set by the FCC for sending SMS text messages. SMS communication is broadly classified into two – non-marketing messages, and marketing messages. Any business or company that wants to send marketing messages need to comply with the new TCPA guidelines and regulations. On the other hand, the non-marketing messages are exempted from the TCPA regulations, however, it is advisable to maintain the Opt-in proofs of customers.

Telephone Consumer Protection Act of 1991

The FCC implemented the Telephone Consumer Protection Act of 1991 (the “TCPA”) adopted rules, including prohibiting the initiation of telephone calls (other than emergency phone calls or calls made with the prior express consent of the called party) using prerecorded or artificial voice to telephone numbers or automatic telephone dialing systems assigned to a paging service, specialized mobile radio service, cellular telephone service, radio carrier service, or any other services for which the called party is charged for the call.

The new Telephone Consumer Protection Act guidelines, effective from October 16th, 2013 require auditable and written consent for every consumer in a mobile database. The new TCPA guidelines will require a significant change in how the marketers can structure their programs. This is applicable for those marketers who are not using written consent for their opt-in programs. Any business or a company who is sending SMS text messages as part of their marketing campaign need to follow the below TCPA guidelines:

1. You need to have written consent from your customers before sending them SMS messages. Obtain their written signature via email, website form, voice recording, text message, or telephone keypress.
2. If you have used a website form for opt-in, you need to immediately send a double-opt-in confirmation request and verify the handset
3. The opt-in confirmation message that you send to the new subscribers need to be compliant with the MMA and CTA guidelines.
4. Maintain a “do not call/unsubscribe list” and honor any such request. When such a request is received, the requester may not be called again on behalf of the business for whom the solicitation is made. Do not violate the National Do Not Call registry.
5. Your current messaging content should be related to the original program that the subscriber opted in to
6. Your company name/brand name should be clearly mentioned in the text
7. In every message, you should provide the opt-out details such as – “Reply STOP to opt-out”. It is also advisable to mention “Msg rates may apply” to inform the customer about the cost involved in replying back.
8. If you used a web-form for opt-in, always provide an empty checkbox with a link to your CTIA compliant mobile T&C’s. Have a clearly written policy available to anyone on request.
9. Document single or double opt-in confirmation messages on with a timestamp
10. Set time limit between 8 AM and 9 PM (local time of the customer) to send the messages

The new guidelines impact every new opt-in that a marketer acquires as well as all of the existing names in their databases. The guidelines are retroactive, meaning that after Oct. 16th 2013, if marketers do not have written consent from someone already in their mobile database, they can no longer message that consumer legally.

There have been some discrepancies in the follow-up message sent for acknowledging Opt-out requests. Specifically, opt-out messages do not violate the TCPA as long as: 

• The consumer has previously given express consent to receive mobile messages from the sender 
• The confirmatory message does nothing more than confirm the consumer’s request to opt-out of receiving future mobile communications (i.e., it does not include any additional marketing) 
• The confirmatory message is the final one sent to the consumer 

Additionally, the FCC ruled that as long as a confirmatory text is sent within five minutes of receipt of the opt-out request, the message is presumed to be part of the consumer’s prior express consent to receive messages. On the other hand, if the confirmatory test is sent more than five minutes after opt-out, there is no presumption and the sender will be required to show that the delay was reasonable.

Exemption from TCPA

Non-marketing messages such as flight updates and bank balances are excluded from the guidelines. One-time transactions are also excluded; such as texting a keyword to a common short code to receive a coupon, which is delivered via a code in the responding SMS message, with no further messages sent.

A text message is exempted from the TCPA if the message:

1. Is on behalf of a tax-exempt nonprofit organization
2. Is not for a commercial purpose
3. Does not include an unsolicited advertisement, even if it is for a commercial purpose
4. Is sent to a consumer with whom the calling company has an established business relationship. This relationship cannot be established merely by having made a prior solicitation call. The customer ends this exemption when he or she requests that no more calls/texts be made.

In case of any doubts regarding the category in which your messages fall, or whether you need to comply with TCPA, please refer to the original guidelines or contact your legal advisor. You should obtain written consent from your customers for all messages where you are not sure of the nature of the content.