TCPA Compliance Checklist [2023]

Your business made the decision to accelerate its marketing efforts with SMS marketing. We agree that there is no better way to reach your customers quickly and effectively than through SMS marketing.You’ve got a list of contacts and know exactly what you want to say. All clear for take-off right? We want to see you launch your first SMS campaign and have massive success too! But first, we suggest familiarizing yourself with certain federal regulations that could lead to fines or legal recourse.

There are several governing bodies with sets of rules and laws who regulate the SMS marketing space. Chief among them being the Telephone Consumer Protection Act (TCPA). The TCPA are the rules you’ll need to comply with regarding SMS marketing in the United States. Considering the steep fines your business can face, plus the lack of trust and confidence your customers will feel if you break them, it's imperative to take the time to learn and understand them.

Our TCPA Compliance Guide Covers:

• What is the TCPA
• How the TCPA Protects Consumers
• TCPA Compliance Guide
• TCPA Best Practices
• TCPA Exemptions

What Is the TCPA?

The TCPA was created by the Federal Communications Commission (FCC), an independent government agency that oversees radio, television and phone activity. The goal of the TCPA is to protect consumers from unsolicited marketing telecommunications that happen via call or text message. Under TCPA regulation, all marketing calls and text messages are subject to government screening, review, and/or penalty.

The TCPA Protects Consumers

The TCPA’s primary objective is defending consumers’ privacy. Consumers may rescind consent at any point and their request must be acted on promptly. If a consumer reports a violation to the TCPA, the reported business may face steep fines (minimum $500 per text). This includes violations where businesses fail to protect consumers’ privacy. Additionally, businesses in violation may be vulnerable to class-action lawsuits, which cost substantial money and can be detrimental to a company’s public image.

TCPA Compliance Checklist

While this is no substitute for professional legal advice, developing and monitoring your company’s TCPA compliance is a great place to start. Here is a checklist that covers the essentials for sending compliant SMS marketing campaigns.

1. Obtain Express Written Consent

The TCPA defines express written consent as a written agreement, authorized by the consumer receiving the call or text, with a concise and visible disclosure that permits your business to send text message marketing or telemarketing communications.

Simply put, consumers must consent to receive SMS marketing communications or telemarketing calls from your business. That consent must then be documented and saved.

Express written consent for SMS marketing happens when a customer provides their consent and mobile number via an online form or a paper form. The form must acknowledge that the consumer is aware they will be receiving marketing text messages from your business. All terms must be clearly conveyed. A check box can also be used, as long as it clearly represents the same agreement and cannot be pre-checked.

2. Send a Double Opt-In Message

A double opt-in is a second level of authorization, which occurs after a customer consents to text message marketing via your business’ online or paper form. A double opt-in message asks customers to reply ‘YES’ (or another keyword via text) that confirms they authorize receiving text marketing messages from your business.

Establishing a double opt-in confirms that your subscribers were aware they signed up for SMS updates when they filled out your form. Since the subscriber did not initiate communication by texting a shortcode, a double opt-in will confirm that they truly intended to receive your messages.

3. Clearly Communicate Terms and Conditions

Your company’s terms and conditions need to be clearly accessible and explicitly stated. Subscribers should be able to easily read and understand your company’s SMS marketing/messaging policy.

Having a well written, detailed policy is only part of the task. Your company should place the link to the policy in its initial SMS messaging as well as on your company’s site. Because we’ve all signed up to things and then forgotten about them, you’ll want to provide and promote as many ways to access your policy as possible.

Remember, if your policy changes in any way, you need to inform your subscribers of those changes. This attention to detail will ensure your business’ compliance and keep your campaigns full of happy, engaged customers.

4. Only Communicate During Business Hours

The TCPA explicitly states that you cannot text or call subscribers before 8:00 AM or after 9:00 PM local time. Communicating with your audience outside of this time window is in violation of SMS marketing compliance laws, and your organization will be susceptible to fines or other repercussions.

5. Continually Offer Subscribers the Ability Opt-Out

The TCPA states that businesses must provide a simple way for subscribers to opt-out of receiving SMS marketing messages. Opt-outs occur when a subscriber, or member of your contact list, indicates that they no longer wish to receive text messages from your business. It is imperative that your business allow for this option, making it clearly actionable. Most companies will ask subscribers to reply “STOP” at the bottom of their communication.

The “STOP” keyword signifies that the subscriber who sent it wishes to be removed from your marketing list. That customer has officially opted-out and is no longer a subscriber. Your company should immediately cease SMS communications with every customer that opts-out, at the risk of fines and/or other penalties as outlined by the TCPA. To ensure compliance its best to include ‘STOP’ instructions with every message sent.

6. Include Your Business Name in All Messages

Your business name is your identity. It’s important that your subscribers know who is messaging them. Consider disclosing your company’s name in every text message. You may also want to add a sender name and the role of that sender in your organization. This not only helps with compliance, but fosters a sense of familiarity and comfort. The goal is always to be as transparent with your subscribers as possible.

7. Respect Consumers Who Do Not Want Your Communications

Businesses must honor the National Do Not Call Registry and all opt-outs. Calling or texting anyone on either list is illegal and carries the risk of fines and lawsuits. Note that customers who opt-out may not be on the National Do Not Call Registry and vice-versa. The TCPA was created to protect consumers’ privacy and it is your business’ responsibility to act accordingly.

TCPA Compliance Best Practices

It is the responsibility of your business to ensure it is compliant with the TCPA at all times. It is recommended that all employees that work in their marketing and sales departments, or have access to SMS marketing platforms like Helios, fully comprehend the extent of TCPA guidelines. There is no substitute for educating and training employees.

To start, create a company policy and treat it just like your terms and conditions. That means the standard operating procedures or SOPs should be easily accessible, explicitly detailed, and concise. Include regulations regarding SMS marketing messages and calls as outlined by the TCPA. Remember the TCPA requires that you inform subscribers of any updates to your terms and conditions. If you update your company’s SOPs, alert your employees to those changes with the same urgency.

Posting your policy is a great start but there are other steps your business should take. For example, routine compliance training ensures that your employees or coworkers stay up to date with changing legislation. Schedule your compliance training regularly to avoid missing any amendments to TCPA regulation.

TCPA Exceptions

The TCPA applies to marketing messages and auto dial calls. There are exemptions that the TCPA makes in regards to customer outreach and it is important to understand these too. In general, informational messages do not require express consent.

TCPA exceptions include:

• Financial institutions - security or account updates
• Schools - closures, concerning absences, health risks
• Healthcare providers - appointment confirmations, pre and post-operative instructions
• Pharmacies - prescription received, prescription ready for pickup
• Utility companies service outages or changes

The above examples do not fully encompass all exemptions. If you are unsure whether your messaging is exempt or not, we strongly recommend checking directly with the TCPA site. In summary, any message that is urgent and/or informative has a high probability of being exempt; whereas messages that have marketing or advertising undertones, such as selling products or promoting services, are not exempt.

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Disclaimer: Please note that this is not legal advice and is for informational purposes only. Your company and associates assume full responsibility in all legal matters.