U.S. SMS Marketing Laws: Telephone Consumer Protection Act (TCPA)
In the U.S. the rules for the sending of bulk SMS messages are laid out in the TCPA, since text messages are considered to be in the same “ball bark” as telephone numbers sent by auto dialers, which was the primary focus of the original law.
Not surprisingly, the law hinges on consent.
In other words, you need to have your customer’s express permission to send SMS / text messages to their phones and mobile devices. “Express” means “written” consent. Written may be physical (i.e., actual signing a physical document), or it can be provided digitally as well.
Be Very Careful…
Here’s where some business owners get into trouble…
They assume that a previous/existing business relationship provides all the permission they need to add their clients to an SMS marketing list.
In 2013, the TCPA eliminated this exemption.
Now, if you’d like to upload cell phone numbers from an existing customer database into an SMS gateway service for mass texting, you’re going to have express permission from each and every person first.
I’m not kidding.
Otherwise, you assume huge legal liabilities; fines run as high as $500-$1500 per unauthorized text.
Plus, there’s the risk of civil suits as well; because of the intimate connections people have with their cell phones and mobile devices, they are much more sensitive as to what they perceive as spam on them, and accordingly, tend to get very annoyed by unauthorized messages very quickly.
A Reasonable Workaround
Obviously, there are a huge number of logistical headaches involved with obtaining express permission from each and every person on your current client database.
A much simpler solution is to connect with your customers using the means for which you have permission to do so (i.e., email, social media, etc), and ask them to subscribe from their own handsets. This is called a “handset intiated optin”, and since it originates from your customer and optimally uses a double opt in process, is all the permission you need.
You will need to provide a compelling reason for them to do so, and for best results, offer a powerful incentive in the form of an…
- Exclusive offer
The right incentive will make all the difference in the world to the success of your program and the percentage of people who take you up on your offer, so take your time coming up with the right one.
I highly recommend giving a little more than you normally would; consider the long term value each customer brings to your business, your traditional advertising costs, and then, the value of being able to deliver your marketing messages directly into your customers’ hands…
In Canada, SMS marketing falls under Canada’s Anti Spam Legislation named CASL (pronounced “castle”).
Link to CASL at https://crtc.gc.ca/eng/internet/anti.htm
CASL went into effect on July 1, 2014. It governs the rules that apply to the sending of all commercial electronic messages (i.e., email, SMS and some social media messages). The law is phased in over 3 years, allowing businesses some time to ensure they are operating under full compliance.
In some ways, CASL is more forgiving than the U.S. law, because it does allow business owners to connect with customers with whom they have prior existing relationships.
On the other hand, it’s a logistical nightmare, because that consent can “expire.”
Let us explain
Implied Vs. Express Consent
Canadian spam laws also hinge on consent, but CASL has two variations, “implied” and “express.”
If I conduct a business transaction with you, you have my “implied” consent to contact me. This consent lasts for
Three years, if the transaction occurs prior to the implementation of the law (July 1, 2014)
Two years, if it occurs after.
If I should conduct another transaction with your business within that period, the clock is essentially “reset”, adding an additional 2 years to the period that you may legally contact me. If I do not, your communications become illegal either 2 or 3 years from the date of our last transaction, depending on when that transaction occured (see above).
Essentially, “implied” consent is a logistical nightmare, and the only way to really get around it is to obtain your customer’s “express” consent
Obtaining “express consent” requires that you obtain your customer’s express permission to contact them.
This permission may be given by physically or electronically signing a document.
It can even be given orally, but oral permission requires detailed documentation to support it; should you ever be challenged on it, the burden of proof falls on you to demonstrate you’re in compliance.
In other words, you’ll need to produce a document that notes the time, place, date, and circumstance that lead to said oral permission.
Thursday, August 20th, 7:30 PM. Chamber of Commerce Business Card Mingle. Ramada Inn, Belleville Ontario. Was introduced to Tom Jones by COC president. Chatted about upcoming Charity event. Obtained his permission to connect about our SMS solution. Exchanged business cards.
In the case of SMS marketing, there’s an easier way to obtain “express” consent; require that your customers “opt in” on their mobile devices and confirm their subscriptions to continue receiving marketing messages from you.
As noted earlier, the key to enticing customers to subscribe hinges on a compelling reason to do so, and a powerful incentive.
Other CASL Requirements
CASL requires that *any* electronic message (which includes texts/SMS) with a commercial intent include
A one step unsubscribe or opt out option, i.e. the ability to unsubscribe at any time with one click or action ( this is built into our software ).
Information that identifies the sender, discloses a physical postal address and provides one additional way to contact the sender
Given that text messages are short (136 characters on a short code, 160 on a long code), it’s not possible to include all this information in a text message, so it has to be made accessible via a web link appended to the message.
Most of the big box stores using SMS in Canada are not including this link, and accordingly, are in violation of CASL.
How We Deal with Canadian SMS Marketing Laws
First of all, any message sent from our system is appended with the required “reply STOP to cancel.”
We also include a mobile page builder, so our Canadian users can create a small mobile friendly webpage containing all information required by CASL, and a web link shortening service so that link can be included in the text message keeping character length to as little as possible.
NOTE: This short link to your CASL compliance page should be included in your initial auto reply when someone joins your list,
it does not need to be included in all text messages.
Clicking the link will bring the subscriber to a mobile responsive web page that identifies the sender, and provides the necessary contact data as required by CASL. Here’s what it could look like, and what it should contain to be compliant.
Textafied Anti-Spam Policy
SMS Spam, Mobile Spam, Text Messaging Spam...Textafied is determined to keep it off of your mobile phone.
The Textafied text messaging system allows only verified opt-in subscriptions. It ensures that all subscribers can opt-out quickly, easily, and permanently from unwanted SMS communications. This is done either from our website or by sending a text message from your phone to the number with the word 'STOP'.
Our Definition of Spam
We consider any unsolicited, unexpected, or unwanted text message as Spam. We do NOT allow use of 3rd party lists, whether consent has been gathered or not. We believe that any type of communication sent to a subscriber about an unrelated subject, that the subscriber did not request, to be Spam.
Textafied Anti-Spam policy:
Textafied follows an ANTI-SPAM policy for all of its communications protocols. This means that we do not condone UNSOLICITED TEXT MESSAGES; NOTIFICATIONS; ALERTS; OR ANY MESSAGES THAT YOU MAY RECEIVE FROM SOMEONE WHO SHOULD NOT HAVE YOUR MOBILE NUMBER. Please let us know about any abuse, including the sender ID, your Mobile Number (to be removed); the date and time you received it and the contents of the message. To report any abuse or violations of inappropriate use of our service, please contact us with your comments/complaints. Your report will be registered and the Client will be investigated for violations of our Anti-Spam Policy. The identity of any individual reporting abuse will be kept confidential.
SMS Text Messaging API
On our terms and conditions agreement, our Clients specifically agree NOT to use Textafied to send unsolicited Text Messages or Spam. Upon incorporating a list Clients agree on the Opt-In only policy to their list. All Text Messages sent using Textafied can be tracked and so removed from the sender list. We support OPT-OUT / REMOVE / UNSUBSCRIBE, Clients have the ability to remove mobile numbers. If we suspect a violation of our Anti-Spam policy, we will contact the Client and discuss the Client options, which may range from a warning, to termination of service for that Client. To the best of our knowledge, our system adheres to ALL Provincial/State and National laws regarding sending unsolicited bulk / group text messages.
SPAM and ABUSE REPORT: OPT-OUT / REMOVE / UNSUBSCRIBE
If you wish to remove yourself from any list, please email us (at firstname.lastname@example.org) with an "OPT-OUT", "UNSUBSCRIBE", "STOP" or "REMOVE" in the subject line. You also may reply to the text Message received by replying with STOP. Finally, you may send a text message containing the word "STOP" to the number from your phone.
Please let us know about any abuse, including your Mobile Number, the date and time you received it and the contents of the message. You will be removed from that list and the Client will be restricted from adding your mobile number to their list in the future.