Disclaimer: Please note that this is not legal advice and is for informational purposes only. It is not intended to substitute for advice from qualified legal counsel, nor is it to assist you or help you be compliant as you assume 100% responsibility in all legal matters.
Before you start texting your customers, knowing what constitutes a TCPA violation is crucial. You need to comply with TCPA guidelines to avoid fines and protect consumers from unwanted texts.
In this guide, we'll cover some items such as:
Review our SMS Compliance Checklist
The TCPA, or Telephone Consumer Protection Act, enforces responsible mobile marketing in the United States. It was enacted by Congress in response to consumer complaints about unwanted, harassing and deceptive phone calls.
Its initial scope covered restrictions on the use of pre-recorded messages and auto-dialed calls. However, it has since expanded to include calls and texts to mobile phones.
There are three types of TCPA violations:
First, don't call or text people who do not want to be contacted. The National Do Not Call Registry is a consumer-generated list of phone numbers that limits the telemarketing calls those consumers receive. It's managed by the FTC (Federal Trade Commission) and enforced by the FTC, FCC (Federal Communications Commission) and state officials.
If a customer has given you express written consent to text them, you may contact them even if they're in the National Do Not Call Database.
Do Not Call Exemptions
Per the FTC, you must subscribe to the Do Not Call Registry if you plan to call or text customers. Most non-profit organizations are exempt. A for-profit organization may register as an exempt organization if all the telephone calls or SMS messages it sends fall within one or more specific categories. Exemptions include:
Note: If you are not an exempt organization but have subscribed to the DNC registry as exempt, you may be subject to civil and criminal penalties.
Review DNC Rules for Telemarketers and Sellers
How to Access the Do Not Call Registry
There are two ways your business can access the Do Not Call Registry:
The FCC strictly prohibits unsolicited calls to residential or cell phones unless you have express written consent or an existing business relationship. An existing business relationship is defined as having done business with a customer within the last eighteen months.
Using automated dialing or pre-recorded messages is also prohibited. It's not illegal to make sales calls to potential customers if they're not on the DNC list, but a live person must make the call.
As with unsolicited calls to residential or cell phones, unsolicited texts are also prohibited by law. Businesses must obtain explicit written consent to add customers to a subscription list and send them marketing or promotional communications. The consent must be in a documented and saved format.
Customers can also check a box if they wish to receive communications from your business. However, this box cannot be pre-checked.
Businesses that violate TCPA laws are subject to harsh penalties. TCPA fines are steep, ranging between $500 and $1500 per individual violation.
A consumer providing sufficient documentation can recover up to:
What happens if your business violates the TCPA? Honest mistakes happen. If your business can show that it meets all the requirements of the FCC's "safe harbor" rule, it is not subject to civil penalties or sanctions for making unsolicited contacts. To meet the safe harbor requirements, your business must:
The Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED) Act became law on December 31, 2019. This legislation expands the authority of the FCC to impose civil penalties of up to $10,000 per call for intentional violations of federal robocall laws.
TCPA penalties may seem daunting. But if you follow a few simple rules, you can rest easy knowing that your SMS marketing campaign is legal and compliant.
Violating TCPA laws can sink your business, so consult your legal team so that you can avoid any TCPA violations or fines.
Whether you're sending 10 or 100,000 SMS messages, Textedly has monthly and annual plans for all your needs, and can support both small and large businesses and organizations.
Disclaimer: Please note that this is not legal advice and is for informational purposes only. It is not intended to substitute for advice from qualified legal counsel, nor is it to assist you or help you be compliant as you assume 100% responsibility in all legal matters.
