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Marketers Should Be Aware of New Rules Surrounding SMS Messaging

Frank Bridges

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The Telephone Consumer Protection Act (TCPA) was passed into law by the Federal Communications Commission (FCC) in 1991. The TCPA was designed to protect consumers from unwanted marketing-related voice and short message service (SMS) text messages.

Effective October 16, 2013, rules concerning SMS messaging were significantly strengthened. The changes focus on acquisition and verification of opt-ins from both new and current subscribers of campaigns. Marketers who send SMS text messages to customers for marketing purposes should understand how these changes may affect campaign compliance.

What Are The Changes As They Relate To Sms Text Messaging?

  1. Prior Express Written Consent — "Unambiguous written consent" is now required before any text message. Written consent can be in the form of a text message or online form.
  2. No "Established Business Relationship" Exemption — Previously, marketers were allowed to rely on established business relationships (such as a previous purchase) to circumvent the need for written consent. This exception will no longer exist. Marketers will now need to obtain written consent, even if they previously had a business relationship with the custom

SMS marketers must receive — and have the ability to prove, via positive record — subscriber consent (opt-in) for both new and existing users. If they can’t prove a subscriber opted into a program, they may be subject to fines of $500 to $1,500 per text message.

Securing And Documenting Subscriber Consent

There are differing opinions about how to best achieve consent. For SMS message campaigns, best practice is to receive consent from the user via device confirmation. In short, the user must consent/opt-in to the SMS program from the actual device/handset. The process currently recommended by Intouch Solutions is below.

  • New Subscriber Opt-In
    • If opt-in is received from the device/handset, this is considered a single opt-in and is acceptable. For example, using their handset, a consumer texts "[KEYWORD] to [SHORTCODE]" and receives an opt-in reply text confirming their subscription.
    • If opt-in is received via input of a phone number on a website, this requires a double opt-in to verify the device/handset. For example, a user inputs their phone number on a website and agrees to the program’s Terms & Conditions. A subscription confirmation text is sent to the handset, allowing for opt-in from the device. The user replies positively to the confirmation text and receives an opt-in reply text confirming subscription.
  • Current Subscribers Who Do Not Meet Updated TCPA Rules
    • Current subscribers will receive a subscription continuity opt-in text message. For example, "Please reply [KEYWORD] to continue receiving text messages." On positive reply, the user is considered opted-in and remains subscribed.
  • All Subcribers
    • A positive record of the consent (opt-in) should be maintained for all subscribers.

Proving Consent

The SMS campaign marketer bears the burden of providing a positive record of consent if requested. Below are some guidelines to keep in mind. A positive record proves the subscriber was provided information specific to the campaign throughout the opt-in process. This begins with the subscriber’s first exposure to the SMS campaign (through print, website or other medium) and continues through the opt-in and confirmation transactions. The key for marketers is to ensure records are maintained of all SMS transactions.

While the details of each SMS campaign vary, some items that may have a bearing on a creating a positive record include:

  • Reference to SMS campaign name in messaging
  • Accessible terms and conditions
  • Program duration messaging
  • Disclaimer of charges
  • Opt-out instructions (STOP messaging)
  • Program assistance (HELP messaging)


The new rules apply to marketing messages only, not transactional messages. Although these rules could be, and probably should be, applied to transactional messages, they currently only impact messages that include marketing language such as "10% off today only," "new and improved," "get a free sample," etc. Marketers, therefore, should be careful not to mix marketing messages with transactional messages in SMS campaigns. Marketers in doubt as to the category of their message should seek clarification to ensure the requirements of the TCPA are met.

In Summary

These changes reinforce the FCC’s stance on consumer protection and provide them with a means of penalizing non-compliant marketers. Following best practices in SMS campaigns will allow marketers to operate within the TCPA rules and reduce the chance of interrupted communication with subscribers. As marketers review SMS campaigns for compliance, it is a good time to review campaigns as a whole. If you require assistance in planning, reviewing and/or implementing your SMS campaign, please do not hesitate to contact Intouch Solutions.

Reference: — Federal Communications Commission [Note: During the 2013 government shutdown, access to information was limited.]


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