SMS Regulation in US
Prerequisites
Ensure that all compliances are in place before you send an SMS.
SMS Regulations and Best Practices
SMS Marketing in the US is governed by the regulations and laws set forth by the Telephone Consumer Protection Act (TCPA) and the Cellular Telecommunications and Internet Association (CTIA).
Telephone Consumer Protection Act (TCPA)
TCPA (Telephone Consumer Protection Act) is the US federal law governing the regulation of telephone solicitation (robocalling). This law was originally designed to address consumer complaints about telemarketing calls to landlines in 1991, and it applies to all phones, even though the landscape has changed dramatically.
TCPA allows consumers to take a brand to court and the penalties levied are harsh. The fine for not adhering to TCPA is $500 per violation and this can be increased to up to $1500 per violation for willful violations.
There are legal firms who go after companies for TCPA violations, either on behalf of individuals or as class action lawsuits, and the fines can add up quickly even when the brand is acting in good faith.
Cellular Telecommunications and Internet Association (CTIA)
CTIA (Cellular Telecommunications and Internet Association) represents the U.S. wireless communications industry and all the companies available in the mobile ecosystem. The CTIA policies and requirements are held above legal requirements and have been laid down to ensure that entities that use the carrier's networks adhere to policies and best practices.
CTIA compliance and policies go beyond TCPA, and the CTIA conducts regular audits to ensure compliance. CTIA has the power to shut down short codes and long codes for violations of its policies, even if the brand has not violated TCPA in any way.
Consumer Consent
SMS messaging should be consistent with relevant laws and regulations, such as the TCPA and associated FCC regulations regarding consumer consent for communication.
Regardless of whether these rules apply and to maintain consumer confidence in messaging services, Non-Consumer (Application to Person) Message Senders should:
- Obtain a consumer’s consent to receive messages in general
- Obtain a consumer’s informed consent to specifically receive marketing messages
- Ensure that consumers have the ability to revoke consent
Types of Messaging Content
Consent depends upon the type of message content exchanged with a consumer. The table below provides examples of the types of messaging content and the associated consent that should be expected.
The table below represents the verbatim excerpt from CTIA’s Messaging Principles and Best Practices for 2019.
| Conversational | Informational | Promotional |
|---|---|---|
| Conversational messaging is a back and forth conversation that takes place via text. If a Consumer texts a business first and the business responds quickly with a single message, then it is likely conversational. If the Consumer initiates the conversation and the business simply responds, then no additional permission is expected. | Informational messaging is when a Consumer gives their phone number to a business and asks to be contacted in the future. Appointment reminders, welcome texts, and alerts fall into this category because the first text sent by the business fulfills the Consumer’s request. A Consumer needs to agree to receive texts for a specific informational purpose when they give the business their mobile number | Promotional messaging is a message sent that contains a sales or marketing promotion. Adding a call-to-action (e.g., a coupon code to an informational text) may place the message in the promotional category. Before a business sends promotional messages, the Consumer should agree in writing to receive promotional texts. Businesses that already ask Consumers to sign forms or submit contact information can add a field to capture the Consumer’s consent |
| The first message is only sent by a Consumer | The first message is sent by the Consumer or business | The first message is sent by the business |
| Two-way conversation | One-way alert or two-way conversation | One-way alert |
| Message responds to a specific request | Message contains information | Message promotes a brand, product, or service; Prompts Consumers to buy something, go somewhere, or otherwise take action |
| IMPLIED CONSENT If the Consumer initiates the text message exchange and the business only responds to each Consumer with relevant information, then no verbal or written permission is expected. | EXPRESS CONSENT The Consumer should give express permission before a business sends them a text message. Consumers may give permission over text, on a form, on a website, or verbally. Consumers may also give written permission. | EXPRESS WRITTEN CONSENT The Consumer should give express written permission before a business sends them a text message. Consumers may sign a form, check a box online, or otherwise provide consent to receive promotional text messages. |
Maintaining Consent Data
Brands should maintain the consent information that the user has provided to make sure that they can use that information as needed upon any issues or confusion.
Clarity on Content-Type
The type of content that the end-user would be receiving should be mentioned in the SMS and user expectations should be set clearly. When the user signs up for the brand’s SMS program, brands should explicitly mention the type of content that the user will be receiving. It should be ensured that the users understand what to expect when they sign up for an SMS program of the brand.
Visible Messaging Terms during Opt-Ins
If an SMS program is advertised digitally, physically, or otherwise, the messaging terms must be visible to the consumer as part of the solicitation to receive SMS messages.
The Messaging Terms requirements are not optional and must be posted either via a unique link or within the brand's Privacy Policy to be compliant. Here's a sample of the messaging terms to be included in the message when obtaining opt-ins.
Sample:
Information about Help and Opt-Out
Brands need to include information in the SMS messages about how consumers can get help (provide a phone number or an email address) and how they can opt-out of the program (by sending STOP to the shortcode/long-code number) regularly. This is critical for marketing programs. It is recommended to include this for transactional messaging too.
It is recommended to include HELP & STOP messaging on a regular basis. It need not be in every message, but it should included be in the brand's message regularly. This is applicable to all A2P messages and is especially critical for SMS Marketing messages.
The STOP Keyword
If a consumer or handset sends STOP to a brand, they must be immediately opted out. A response confirming the opt-out can be sent but nothing else is allowed to be sent to the user.
If an SMS program has multiple lists, or if it is being used for transactional and marketing messaging, if a consumer replies STOP, they must be removed from all SMS messaging. This number cannot be sent another A2P message from the brand (regardless of number) unless the handset opts back in.
1:1 MO/MT
Only one message should be sent from A2P platforms for each message sent from a consumer. If a consumer texts a keyword, reply with one message. If there is another response from the consumer, another reply can be sent, but the responses to each message from a consumer should not exceed 1:1
Avoid Illegal Language Cues (SHAFT)
While creating the content for SMS campaigns to be sent in the US, brands should be aware of certain phrase cues that they should avoid which are considered illegal in the US. These phrases/topics include:
- Sex
- Hate Speech
- Alcohol
- Firearms
- Tobacco
Brands should avoid the above topics or avoid the use of phrases that resonate with these topics in their SMS content.
Explain Hidden Charges
Brands are required to explain any hidden charges that may be applied while engaging with SMS campaigns. When the brand expects the user to give a reply in terms of a reserved or a custom keyword, they should mention explicitly that the user might be charged for this reply.
Brands should be transparent and upfront about the charges that the user may incur to engage with the message. Brands can include phrases like “Standard message and data rates apply.”
Set Up Appropriate Sending Schedules
Brands should not be sending SMS at late hours of the day. This should be practiced to comply with TCPA sending practices regulations.
Outside of regulatory restrictions, one should avoid sending SMS during late hours as they don’t yield much engagement. Do not send SMS marketing messages between 9 pm and 8 am local time (TCPA requirement) unless the message is in response to an incoming message (for instance, it is ok to allow a response to be sent to a consumer if they text a keyword).
Build Organic Lists
Brands should build SMS subscriber lists organically by getting users to subscribe who participate in business with the brand. This will not only help them get a good quality user base but also yield good engagement metrics.
Inorganic practices like buying lists are illegal and might lead to irreversible damage as most of the users might not have provided explicit consent which could lead to severe penalties on the brand and also the termination of the numbers.
Updated about 1 year ago