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TCPA CAN-SPAM

Avoid Costly Fines: A Guide to TCPA and CAN-SPAM for SMS Marketing

The power of SMS marketing is undeniable. With open rates as high as 98%, it’s a direct line to your customer’s, patient’s, or member’s pocket. But this potent tool comes with a responsibility – ensuring you’re compliant with the law. Violating SMS regulations can result in hefty fines and damage your brand reputation. This blog post serves as your comprehensive guide to understanding and adhering to SMS compliance in the United States.

Who Governs SMS Compliance?

Several organizations play a role in shaping the SMS marketing landscape:

  • Cellular Telecommunications Industry Association (CTIA): This trade association advocates for the wireless communications industry and provides guidelines for responsible SMS practices, though they don’t have enforcement power. The CTIA publishes and maintains a guide to Messaging Principals and Best Practices. While the principals in this guide are not enforced by regulatory agencies, they are agreed to and enforced by member Mobile Network Operators. Campaign applications out of compliance with CTIA guidelines will not be approved. Check out this post for more on CTIA messaging best practices.
  • Mobile Marketing Association (MMA): A global non-profit focused on mobile marketing, the MMA offers best practice guidelines and resources to promote ethical and effective mobile engagement.
  • Federal Communications Commission (FCC): – The FCC is the main regulatory body with enforcement power over SMS communications. They oversee the Telephone Consumer Protection Act (TCPA), a key law governing SMS marketing.
  • Federal Trade Commission (FTC): – The FTC enforces consumer protection laws, including the CAN-SPAM Act, which applies to commercial electronic messages, including SMS.

While the CTIA and MMA provide valuable guidance, the FCC and FTC are the primary enforcers of SMS compliance laws.

Telephone Consumer Protection Act (TCPA)

  • What it is: Enacted in 1991, the TCPA aims to protect consumers from unwanted telemarketing communications, including calls and text messages. Key provisions include:
    • Express Written Consent: – The TCPA mandates obtaining “prior express written consent” from consumers before sending them marketing text messages. This consent must be clear and unambiguous, demonstrating the consumer’s willingness to receive messages.
    • Automated Dialing Systems: The TCPA restricts the use of autodialers or prerecorded voice messages for marketing purposes without explicit consent.
    • Penalties: Violations can lead to fines ranging from $500 to $1,500 per violation. Given that each text message can be considered a separate violation, penalties can quickly escalate.

Controlling the Assault of Non-Solicited Pornography And Marketing Act (CAN-SPAM Act)

  • What it is: The CAN-SPAM Act sets rules for commercial email and, importantly, extends to commercial text messages. Key provisions include:
    • Identification: Commercial messages must be clearly identified as advertisements.
    • Opt-Out Mechanism: Businesses must provide a simple and clear way for recipients to opt out of receiving further messages. This usually involves a keyword like “STOP.”
    • Contact Information: Messages should include valid contact information for the sender.

State Laws and the CCPA

In addition to federal regulations, be aware of state-specific laws that may impose further requirements. For instance, the California Consumer Privacy Act (CCPA) grants California residents expanded rights regarding their personal information, including:

  • Right to Know: Consumers can request information about the categories and specific pieces of personal information a business has collected about them.
  • Right to Delete: Consumers can request the deletion of their personal information.
  • Right to Opt-Out: Consumers can opt-out of the sale of their personal information.
  • Right to Non-Discrimination: Businesses cannot discriminate against consumers for exercising their CCPA rights.

For SMS marketing, the CCPA emphasizes clear and straightforward opt-in and opt-out processes.

Best Practices for SMS Compliance

  • Obtain Express Written Consent: Always get clear and explicit consent before sending marketing messages.
  • Honor Opt-Outs Immediately: Process opt-out requests promptly and efficiently.
  • Be Transparent: Clearly identify yourself and the purpose of your messages.
  • Provide Clear Instructions: Make it easy for recipients to understand how to opt out or get help.
  • Stay Informed: Keep up-to-date with evolving regulations and industry best practices.

By following these guidelines, you can harness the power of SMS marketing while staying on the right side of the law.

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