The Telephone Consumer Protection Act (TCPA)
The largest threat and regulation that affects your aspirations for text message marketing is the Telephone Consumer Protection Act (TCPA). It was passed to protect Americans from the unregulated onslaught of autodialers in the early ‘90s and by proxy applies to automated text marketing systems today. Complying with this law can be simple with common-sense content creation, but it’s also helpful to know the specifics of what the law prohibits and allows.
The TCPA was enacted to regulate phone calls and fax messages, but its scope has been continuously applied through the wireless age. It also created the national Do Not Call Registry and stipulated specific rules for autodialers and automated texting platforms.
For those who may not be aware, the “do not call list” is a real thing, not just a phrase people use to get out of a telemarketing call they accidentally answered. However, it can be difficult to get on it, as it often requires physically mailing in account and/or personal information about your interaction with a business. Still, empowering users to take action against unwanted texts or calls has affected the audacity of many telemarketers and automated messaging platforms in a way that reduces the annoyance for consumers.
Due to the outdated nature of the language of the TCPA, the definition of robocalls have been variably interpreted by courts throughout the past few decades. Most of us can remember seeing random strange numbers on our caller ID that ended up being spam messages. However, this practice has continued and even become more prevalent thanks to the convenience (and relative anonymity) of text messages.
As defined by precedent, autodialers are still relegated to machines that randomly produce and call 10-digit numbers for a real person to engage with a live telemarketer. With automated texting, however, the spam can reach people without an active speaker thanks to a pre-written message chain.
When it comes to reaching out to numbers you don’t already have consent to contact, don’t do it. The TCPA is known to cover and punish such infringements of privacy, and the people on the other end, whether they take legal action or not, won’t appreciate it either.
As mentioned above, most violations of the TCPA are by those who wish to make large-volume, anonymous calls to as many people as possible in order to gain revenue at scale. So for most normal businesses engaging in text message marketing, following common sense applications of how people use their phones and expect to receive texts is enough. Just for your edification, here are the most common violations of the TCPA that normal businesses might be at risk for.
We’ve said it before and we’ll say it again: you must gain express written consent before sending any marketing text messages to your customers or contacts. This includes a personal phone call, pre-recorded message, text, or any other contact by phone number.
You also need to have access to the Do Not Call Registry to make sure any number you might be contacting isn’t on there. Contacting a number that’s on the Registry can be illegal unless the person has provided express written consent or patronized your business within the last 18 months. Otherwise, there’s no “established business relationship” by which you’re allowed to contact the number.
There have been multiple high-profile lawsuits against telecommunications companies and other businesses for violating the TCPA in the past few decades. They include multi-million dollar settlements and penalties for statutory damages, often due to decisions made that willfully ignored the major tenets of the law. Without knowledge of the specifics of any given lawsuit, violating the TCPA can result in $500-$1,500 per violation, which might not seem like much, but considering the size of many large businesses’ contact or leads databases can quickly add up to millions of dollars.
When beginning a text message marketing campaign, be smart, stick to the basics, and use common sense to avoid these steep penalties and build a more trusting base of contacts.