A Text Message is Considered a Call… Until it’s Not
By now, most of you reading this already know that the FCC’s TCPA treats text messages just like calls. Therefore, any requirements under the TCPA apply to text message campaigns as well as calling campaigns. Specifically, calling time restrictions, consent requirements, DNC provisions, record keeping responsibility, etc. apply the same to non-exempt text messages as they do for non-exempt calls.
This seems fairly straightforward at the federal level. However, several states have started specifically regulating text messages and, therefore, taking a different approach than the FCC did under the TCPA.
For example, in Pennsylvania, if a consumer’s phone number is on the state or Federal DNC list, only an EBR exemption is needed to text the consumer manually. However, if the consumer’s phone number is not on a DNC list, express written consent (EWC) is required. It’s quite odd that the state decided to allow more privacy (requiring EWC) to consumers not on a DNC list and less to those who have expressed that they do not wish to be called by adding their phone number to the Federal and/or state DNC list (text allowed with only an EBR).
Furthermore, the majority of states have telemarketer registration requirements and some of these states’ registration requirements may apply even if your company is only sending text messages to consumers and not placing calls.
On top of the federal and state requirements, companies must also meet consumer expectations regarding how they expect to be texted and how companies meet their privacy wishes. The Mobile Marketing Association published best practices they recommend companies follow when texting consumers and these recommendations include how often to include opt-out instructions, monitoring incoming text logs from consumers and many other things.
Although not new territory for many companies and consumers, text message marketing is in the early stages of being regulated at the federal and state level. It is important for companies to track legislation, be aware of the current requirements and meet consumer expectation.
For more information regarding the text message compliance requirements at the state or federal level, please reach out to us at firstname.lastname@example.org.
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