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Do You Text Your Customers and Prospects? What to Know About Complying with the Law

Do You Text Your Customers and Prospects? What to Know About Complying with the Law

According to a study by Asurion, Americans check their phones 96 times per day—or at least once every 10 minutes. So, it’s no surprise that text message open rates are at 98 percent. 

That’s right, 98 percent!

Compare that to email marketing’s 20 percent open rate…

If you’re not already using text message marketing, you’re considering it now, right?

But before you do, it’s important to make sure that you are complying with the law. In the United States, electronic communication is regulated on both the federal and state level. Therefore, businesses must become familiar and comply with national and local regulations.

Stakeholders in Text Message Privacy Laws

There are four stakeholders who oversee text message privacy laws in the United States:

  • Federal Communications Commission (FCC)—an independent government agency that regulates electronic and media communications by radio, television, wire, satellite, and cable, and is responsible for implementing and enforcing U.S. communications law and regulations.
  • Federal Trade Commission (FTC)—a government agency that is responsible for protecting consumers and works to prevent anti-competitive, deceptive, and unfair business practices through law enforcement, advocacy, and education.
  • Mobile Marketing Association (MMA)—a mobile trade association that unites marketers, tech providers and sellers.
  • Cellular Telecommunications Industry Association (CTIA) –represents the wireless communications industry, from carriers and equipment manufacturers, to mobile app developers and content creators.

The FCC and FTC hold legislative powers to establish and execute laws, regulations and penalties for businesses, while the MMA and CTIA advocate for the creation of best marketing practices and ethical communication.

Text Message Privacy Laws

There are currently two text messaging privacy laws that apply to the entire United States:

CAN-SPAM Act

Under the CAN-SPAM Act, the FCC regulates commercial text messages that are sent to wireless devices in order to protect consumers from receiving unwelcome messages. This law makes it illegal for businesses to send unsolicited text messages to cell phones and requires that 1) all advertisements are easily identifiable as a commercial message, and 2) that consumers can easily unsubscribe from receiving messages from that sender.

Telephone Consumer Protection Act (TCPA)

Under the Telephone Consumer Protection Act, businesses are prohibited from sending messages to consumers without explicit written consent—even if the consumer provides their phone number to that business. Companies are also expected to be transparent with subscribers about their text message marketing, and should provide them with the following:

  • Description of text message program they are subscribing to.
  • Approximate number of messages they can expect to receive during a defined period of time.
  • Full terms and conditions of the business’ privacy policy.
  • Instructions for opting out of receiving messages and instructions on how to find help information.

SMS Marketing Best Practices

Protect yourself and your business by following a few best practices when executing your text marketing strategy:

Obtain Written Consent

Obtaining written consent is the most important step in compliance. However, written consent does not necessarily mean on paper—you can collect it via short codes, paper forms or online forms.

Confirm Opt-Ins

As soon as customers opt-in to your campaign, send a confirmation that includes your business name, campaign purpose, approximate frequency of text messages, directions on how to opt out, terms and conditions, your privacy policy, and a reminder that text message charges and data usage policies may apply.