Ensuring your SMS Messaging Service Complies with the TCPA

This guide is for informational purposes only. We recommend contacting an attorney to seek additional advice pertaining to the Telephone Consumer Protection Act and SMS marketing best practices in general. Note that calls and texts sent via TextIt are considered 'Robocalls' and 'Robotexts' by the FCC, and we strongly advise against SMS spamming.

Our US-based users frequently ask us for tips for complying with the Telephone Consumer Protection Act (TCPA), which governs mass transmission of text messages (SMS) and phone calls in the United States. In an effort to further quell TCPA-related concerns and encourage FCC compliance, we've put together this short, comprehensive guide. 

Who is this Guide for? 

This guide may be useful for anyone who uses TextIt to SMS and/or IVR messages within the United States. When sending text messages or phone calls that aren't bidirectional or contact-initiated (i.e., triggered by TextIt's keyword or uncaught message triggers), you're engaging in automated telephone dialing, the primary mechanism governed by the TCPA. 

TCPA Requirements

Prior Consent 

Organizations are required to obtain prior written express consent from their contacts before sending messages. Thanks to the E-SIGN Act, prior written consent may include electronic or digital forms of signature (i.e., agreements obtained via email, website form, text message, dial pad or voice recording).website form submissions or text message opt-ins.

When soliciting consent, consider the following: 

1) The consumer’s consent to receive such solicitations must be unambiguous, meaning that the consumer must receive a “clear and conspicuous disclosure” that he/she will receive future calls/text messages that deliver autodialed and/or pre-recorded telemarketing messages; that his/her consent is not a condition of purchase; and he/she must designate a phone number at which to be reached. Consent may not be a condition of sale. 

2) When asking your contacts to participate in your service (either through a web form, point of sale, mobile opt-in, or paper document), you must disclose the following: "By participating, you consent to receive text messages sent through an automatic telephone dialing system."

3) This disclosure must be made clear and conspicuous to your contacts before they have opted into your SMS service. This means that you should disclose the use of an “automatic telephone dialing system” (equipment which has the capacity to dial without human intervention) in close proximity to the mobile phone number input. 

Condition of Purchase 

The TCPA requires that contacts be made aware that their consent is not a condition of making a purchase. This means that your contacts or constituents can’t be forced to consent to receive text messages from your organization when they make a purchase from your organization. When asking your customers to participate in your message service, you must disclose the following: "Consent to these terms is not a condition of purchase."

Related considerations:  
  • All advertising and promotional material must clearly indicate if the service is a subscription. 
  • Subscription terms and billing intervals must be disclosed to your contacts.
  • You must clearly communicate all material terms and conditions of the program.  
  • All advertising, promotional material, and your "Help" message must clearly display the opt-out information.
  • The service should not be promoted as "free" when premium fees are associated with the service that the subscriber will pay with a reasonable level of participation in the program.

CTIA Requirements

While this guide is focused on helping you understand and implement TCPA requirements, you might also want to consider Cellular Telephone Industries Association (CTIA) requirements. The CTIA  is an international industry trade group representing the interests of wireless telecommunications companies. Below are the CTIA requirements for advertising a recurring SMS service to your contacts: 

  • Recurring program description (e.g., 'subscribe to receive recurring SMS offers') 
  • Stop instructions (e.g., 'Text STOP to opt out')  
  • Disclosure that message and data rates may apply (e.g., 'msg&data rates may apply')
  • T&C/privacy policy link (e.g., 'T&C/Privacy Policy: www.acme.co/privacypolicy')

Opting-out 

According to the TCPA, your contacts should have the ability to opt-out at any time. 

How Twilio Manages Opt-outs

When a contact sends STOP, STOPALL, UNSUBSCRIBE, CANCEL, END or QUIT to one of your Twilio numbers, Twilio will prevent them from receiving any additional messages until that contact responds START. Specifically, they'll receive the following message:

"You have successfully been unsubscribed. You will not receive any more messages from this number. Reply START to resubscribe." 

When that contact resubscribes, they'll receive the following message: 

"You have successfully been resubscribed to messages from this number. Reply HELP for help. Reply STOP to unsubscribe. Msg&Data Rates May Apply." 

How TextIt Manages Opt-outs

When Twilio notifies us that a contact has blacklisted one of your Twilio numbers, we place that contact in the default 'Stopped' group in your account's Contacts tab. The contact is removed from all other groups and specially marked so that any outbound message attempts are blocked.

(Use this guide to have Twilio notify you of errors–like the 21610 blacklist error mentioned in this article–via email.) 

Sending Timeframe 

The TCPA stipulates that text messages may only be sent between 8 a.m. and 9 p.m. in the time zone your recipient is in. If your service sends messages to contacts in different timezones, contact us about the various options we provide.  

Record Keeping

To protect your organization from future disputes, it's advisable to maintain each contact's consent for at least four years from that date in which it was given, which is the federal statute of limitations for bringing an action under the TCPA.

Questions? Comments? Let us know

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