The Telephone Consumer Protection Act (TCPA) applies to all SMS marketing, including short code text messaging. The TCPA protects consumers from receiving text message spam sent through a short code. In this article, we discuss the origin, purpose, and current state of the TCPA.
TCPA Text Messaging History
The 1991 Telephone Consumer Protection Act (TCPA) was passed to curb the onslaught of telemarketing spam that was plaguing American families. This federal law put clear restrictions on automated dialers and required marketers to obtain given and ongoing consent from consumers. Because texts can also be sent using an automated device or software suite, these restrictions and regulations were extended to text messaging a decade later.
The TCPA requires brands to build their own database of recipients for each new campaign, largely due to the express prior written consent requirement. Brands are only legally allowed to message consumers who have provided explicit permission for messaging. Sending messages outside of these permissions is a violation of the law and opens the brand to legal and financial repercussions. This means a business can’t send messages to a pre-existing database of customers.
The TCPA also requires brands to include specific disclosures to consumers when collecting their consent and phone numbers. Information about terms of service, data and message rates, and a clear description of the messaging content are examples of the information a brand must provide at the time of acquisition.
Failure to follow these guidelines result in a violation. The fine for a violation starts at $500 per message, per consumer—but if the violations are determined to be intentional, those fines triple to $1,500 per message, per consumer. If these violations are spread out over an entire customer database, your company could be facing millions of dollars in legal fees.
TCPA SMS Short Code Compliance
Prior Written Express Consent
Since October 16, 2013, businesses have been required to obtain “express prior written consent” from their customers before they can legally send them SMS marketing messages. Thanks to the E-SIGN Act, there is no need for customers to sign a physical piece of paper; a website form submission or SMS message is sufficient for consent.
Condition of Purchase Consent
Besides making sure customers know they’ll be receiving automated marketing SMS messages from your business, according to the TCPA you’re also required to inform customers that this consent is not a condition of making a purchase.
The following disclosure covers both of the TCPA requirements just mentioned. This disclosure must be “clear and conspicuous” to your customers before they opt in to your SMS marketing campaign. The US Short Code Directory recommends you also require customers to consent to these disclosures via SMS message before they opt in.
Example: “By participating, you consent to receiving text messages sent by an automatic telephone dialing system. Consent to these terms is not a condition of purchase.”
The materials available on the US Short Code Directory website are for informational purposes only and not for the purpose of providing legal advice regarding the Telephone Consumer Protection Act (TCPA). You should contact an attorney before launching an SMS marketing campaign or if you have any questions about the TCPA.
We hope this article helped answer your question. If you have any other questions or concerns about SMS short codes, take advantage of our Learning Center. We strive to be an information resource for you on this topic, so if you have unanswered questions please contact us directly