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TCPA Compliance

Regarding the Telephone Consumer Protection Act (and Do Not Call List) Regulatory Policy: This guide is for informational purposes only. We recommend contacting an attorney to seek additional advice pertaining to the Telephone Consumer Protection Act and SMS marketing best practices in general, and we “TextWik” strongly advise against SMS spamming.

What Is TCPA Compliance?

The TCPA (developed by the FCC), sets standards that, if broken, can result in a slew of legal trouble. This is because, the TCPA, operates under federal law. While no business has ever been taken to court for not following CTIA guidelines, dozens of big name brands have been sued under the TCPA, including large franchises such as Jiffy Lube and Papa Johns.

The Telephone Consumer Protection Act (TCPA) was passed by Congress in 1991. The Act was designed to safeguard consumer privacy by restricting companies from engaging in unwanted telemarketing communications practices e.g. the use of auto-dialers and prerecorded messages, and it has since been modified to include SMS/text messaging. The latest edition of the CTIA’s Best Practices Guide for SMS Marketing and Communications, released on January 19, 2017, places an additional degree of emphasis on consent and TCPA compliance.

As stated in our terms and conditions and usage policy, all of our clients have a legal obligation to ensure that their contact lists and messaging content are compliant with all applicable state and federal laws, as well as all requirements established and enforced by the CTIA that regulate SMS/text messages transmitted via short code.

What exactly does the TCPA monitor and regulate?

The federal Telephone Consumer Protection Act (TCPA) and related FCC regulations shield consumers from unwanted telemarketing. The TCPA defines telemarketing as the initiation of a telephone call or fax for encouraging the purchase or investment in property, goods or services, which is transmitted to any prospective customer at a residence.

The TCPA governs cold calls, prerecorded sales calls, and the use of auto-dialers, fax machines and other telemarketing strategies.

The TCPA mandates that telemarketers:

  • Maintain a Do Not Call Policy
  • Promptly provide a copy of the Policy to requesting consumers
  • Only make calls between 8 a.m. and 9 p.m. (local time of the person being called)
  • Identify the caller name, company name and caller location
  • Maintain and comply with a company “do not call” list derived from the federal “do not call” registry Honor a consumer’s request made during a call to place the consumer’s name on the “do not call” list Transmit caller ID information
  • Not abandon outbound calls

Why Does This Matter?

The TCPA provides for a private right of action and statutory damages and permits class-action lawsuits. Damages start at $500 and go up to $1,500 per recipient for each text message sent.

If you are unsure as to whether your contact list meets the established criteria for consent outlined by the TCPA and CTIA documents referenced (and linked) above, we advise you to consult with your organization’s compliance team and/or legal counsel.

TCPA Requirements - Obtain Prior Consent Before Sending Message

Basically, the TCPA stipulates that businesses and/or organizations must receive express written consent from individuals prior to sending any SMS/text messages to them. Obtaining an individual’s phone number—regardless of whether they are a potential lead, an existing client, a former customer, or a member of your group or organization—is not the same as receiving permission to contact them.

Exception: There are only a few special exceptions under the TCPA (such as appointment reminders and delivery notifications) that may be subject to exemption. For additional information about compliance guidelines that apply to specific industries and/or audiences, The Data and Marketing Association’s Comprehensive Guide to Compliance is a useful resource

When soliciting consent, consider the following:

1) The consumer’s consent to receive such solicitations must be unambiguous, meaning that the consumer must receive a “clear and conspicuous disclosure” that he/she will receive future calls/text messages that deliver autodialed and/or pre-recorded telemarketing messages; that his/her consent is not a condition of purchase; and he/she must designate a phone number at which to be reached. Consent may not be a condition of sale.

2) When asking your contacts to participate in your service (either through a web form, point of sale, mobile opt-in, or paper document), you must disclose the following: "By participating, you consent to receive text messages sent through an automatic telephone dialing system."

3) This disclosure must be made clear and conspicuous to your contacts before they have opted into your SMS service. This means that you should disclose the use of an “automatic telephone dialing system” (equipment which has the capacity to dial without human intervention) near the mobile phone number input.

Condition of Purchase

The TCPA requires that contacts be made aware that their consent is not a condition of making a purchase. This means that your contacts or constituents can’t be forced to consent to receive text messages from your organization when they make a purchase from your organization. When asking your customers to participate in your message service, you must disclose the following: "Consent to these terms is not a condition of purchase."

Related considerations:

  • All advertising and promotional material must clearly indicate if the service is a subscription.
  • Subscription terms and billing intervals must be disclosed to your contacts.
  • You must clearly communicate all material terms and conditions of the program.
  • All advertising, promotional material, and your "Help" message must clearly display the opt-out information.
  • The service should not be promoted as "free" when premium fees are associated with the service that the subscriber will pay with a reasonable level of participation in the program.

Importing Numbers to TextWik

To enable contact import permissions, please complete the following steps:

  1. Review the documents referenced in this message
  2. Review your contact lists to determine if they meet the compliance requirements
  3. Edit your contact lists in consultation with your organization’s compliance team and/or legal counsel
  4. Email [support@textwik.com] with a brief summary explaining how, when, and where consent has been documented for the contacts that you would like to upload
  5. Include the total number of contacts on your list

After we receive, a member of our team will review your request and make every attempt to respond within one business day.

If your request is approved, you will receive a confirmation message and instructions for uploading your list as a CSV file into our system.

If your request is not approved, an alternative method for building a compliant contact list (such as keyword opt-ins or web form opt-ins) may be recommended, along with instructions and tips to help you succeed.

Disclaimer: Please note that this advice is for informational purposes only and is neither intended as nor should be substituted for consultation with appropriate legal counsel and/or your organization’s regulatory compliance team.

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