It’s a new month, which means it’s time for a new blog series. This month, we’re tackling the legal hurdles you may face when getting into texting.
Think adding SMS to your sales funnel is as easy as sending a text to a friend? Think again. Technically speaking, yes, there are many tools that give a brand the capacity to text, but few are helping them navigate the regulatory waters they are about to enter.
Texting your audience (whether they are prospects or existing clients) has extra legal/compliance hoops you’ll need to jump through before you get started. We consulted the Czar of TCPAWorld.com himself, our Regulatory Attorney, Eric Troutman of Squire Patton Boggs, and asked the question:
“Which various governing bodies and rules does a brand need to familiarize itself with before getting into SMS?”
Here’s what he said:
“Unfortunately there’s a thicket of interrelated (and sometimes conflicting) laws and regulations out there that you need to familiarize yourself with. The TCPA and the TSR are two obvious and really critical ones. But the CFR regulations promulgated by the FCC are just as important. As are the Commission’s declaratory rulings in this space. Plus, there are UDAAP and FTC concerns in many areas of consumer outreach along with robust (and likely unconstitutional) carrier restrictions. If you’re trying to collect debt, you’ll have the CFPB’s regs and the FDCPA to contend with—that new Hunstein case is a killer. This stuff is navigable, but all in all, it’s probably best to consult counsel before deploying any outreach strategy.”
Here’s where you should start:
- Consult an Attorney
- Federal Trade Commission (FTC) rules around truthful advertising, the Telemarketing Sales Rule (TSR), and unfair, deceptive, or abusive acts and practices (UDAAPs)
- Cellular Telecommunications Industry Association (CTIA)
- Telephone Consumer Protection Act (TCPA) and implementing rules and regulations (47 CFR § 64.1200, et seq.)
- The Telemarketing Sales Rule (TSR) (16 CFR § 310.1 et seq.)
- National Do Not Call Registry (DNC)
- Federal Communications Commission (FCC)
- Consumer Financial Protection Bureau (CFPB)
Why Are There So Many Organizations and Regulations?
As new technology develops, it changes the way we communicate. Think about it — cell phones are almost necessary to function in today’s society, and it’s easier than ever to reach the people you need to contact on a personal level. (Think about the furthest you’ve ever been away from your phone in the last year.)
Unfortunately, the progress accompanied by technology also brings a certain amount of access and people who want to take advantage of others. That’s why we have these organizations and rules — to protect people.
Federal Trade Commission
The FTC is the government agency that enforces rules and dispenses justice. Think of them as the Avengers if the Avengers used the legal system instead of brute strength and flashy costumes. Essentially, they follow up on complaints people make about businesses that use texts or calls to “scam” people.
As we’ve seen in the movies, sometimes the Avengers go after the wrong people on accident. Pobody’s nerfect. That’s why enterprises need to keep detailed records to prove that they’re following protocol and guidelines. If they aren’t, there can be legal and financial consequences.
Cellular Telecommunications Industry Association
Called “the voice of America’s wireless industry,” (CTIA) the CTIA publishes best practices to help assure deliverability past carrier restrictions and represents the U.S. wireless communications industry. The CTIA focuses on policies and regulations that encourage the wireless industry in America to evolve.
This group is made up of individuals with a background in wireless, telecommunications, and technology, making them experts in what we do. Not only do they create best practices, but their actions are informed by industry experience.
Telephone Consumer Protection Act
Now we’re getting into regulations. The 1991 TCPA is the legislation consisting of rules that govern telemarketing calls, the use of automatic telephone dialing systems, and artificial or prerecorded voice messages. Though not explicitly stated, this includes texting as well.
When it comes to texting, the TCPA requires “expressed consent” to use automated technology and prerecorded/artificial voices to contact consumers for any purpose. That means you’ll have to obtain consent to start texting your audience. (For more on consent, check out next week’s blog!)
National Do Not Call Registry (DNC)
In 2003, the Federal Communications Commission (FCC) worked with the FTC to create the National Do Not Call Registry . Most enterprises that do outbound communications are familiar with this already. But just in case you’ve been in a coma for 18+ years, the DNC requires “expressed permission” to contact residential numbers on the National DNC using any dialing mechanism. This, again, includes texting.
Federal Communications Commission
FCC rules and regulations, as well as its declaratory rulings, orders, and guidelines, go into more detail about marketing laws and provide some guidance, for example, about what you can and can’t do or say in messages.
Consumer Financial Protection Bureau
The Consumer Financial Protection Bureau (CFPB) issues rules, supervises, and enforces federal consumer financial protection laws such as the Fair Debt Collection Practices Act (FDCPA), and unfair, deceptive, or abusive acts and practices (UDAAPs).
If you’re seeing a reoccurring theme of consent in these regulations, that’s good. You’ve passed Drips’ SMS Governing Bodies and Rules 101 crash course!
Additional Industry-Specific Governing Bodies and Rules
These are just a few of the regulatory bodies, laws, and best practices you and your vendors should adhere to and be cognizant of. But there are many other industry-specific laws, regulatory bodies, and SROs that you will want to research depending on your specific industry (too many to name). E.g., the CFPB for financial services.
We’ve only just begun getting into how you can legally prepare to implement SMS into your marketing strategy. Don’t forget to check back next week to see if your audience is ready (legally speaking) to SMS!
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