Did you know that you must legally obtain prior express consent to send a marketing or promotional text message to a mobile device?

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, "Customer agrees to familiarize himself with and abide by all applicable local, state, national and international laws and regulations and is solely responsible for all acts or omissions that occur under their account, including without limitation (a) the initiation or making of the phone calls and or messages transmitted through the Services or (b) the creation of and the specific content of the phone calls and messages."

What Is TCPA Compliance?

The Telephone Consumer Protection Act (TCPA) went into effect in 1991, and it has since been modified to include SMS/text messaging.

In a nutshell, the TCPA stipulates that businesses and/or organizations must receive express written consent from individuals prior to sending any autodialed 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.

There are only a few special exceptions under the TCPA (such as appointment reminders and delivery notifications) that may be subject to exemption. Penalties for TCPA violations are steep, so it’s best to always err on the side of caution and make sure you have express written consent before sending any texts—even if you think yours are transactional. 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.

Why Does This Matter?

The TCPA provides for a private right of action — that is, a right to sue the sender — and statutory damages, and they are often pursued as class action lawsuits. Damages start at $500 and go up to $1,500 for each text message sent or illegal call made. In addition to private citizen lawsuits, the FTC and FCC both have authority to bring actions for violations of the TCPA, as do state attorneys general on behalf of citizens of their states. Learn more about TCPA violations.

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.

For more information - please read this article on how to be compliant in your messaging and calling tactics.

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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