Text Messaging Do’s and Don’ts: 5 Ways to Keep Mobile Marketing Compliant

If you’re reading this, you’re most likely somehow connected to the world of direct marketing and have certainly heard all the talk surrounding the FCC’s new Declaratory Ruling regarding TCPA. In the Ruling, the FCC reaffirmed its previous statements that text messages, including internet-to-phone texts, must adhere to the same requirements under the TCPA as calls to wireless numbers. With the evolving and intensifying legal and regulatory environment, it’s more important than ever to ensure your company’s mobile marketing efforts are compliant with the regulations. Below you will find 5 basic Do’s and Don’ts to help you stay compliant when conducting text messaging campaigns.

Don’t assume the functionality of your dialer.

Specifically, don’t assume your dialer is not an Automatic Telephone Dialing System (ATDS) and, therefore, assume your text messages are not within the scope of the TCPA. As discussed further in one of our previous posts, the FCC stated that, even if your company is using a dialer in manual mode, the potential to dial randomly or sequentially due to certain modifications could make the system fall under the definition an ATDS. Therefore, CompliancePoint recommends having an expert perform a dialer analysis to determine the true functionality of the system to be used.

Do obtain proper consent.

Ensuring your company has proper consent is imperative to maintaining compliance. Prior express written consent must be obtained to send solicitous texts via an ATDS to a consumer. If the text message is strictly informational and contains no solicitous material, only prior express consent is required to send text messages via and ATDS. The FCC clarified in its Ruling that the provision of the number by the consumer constitutes valid prior express consent. The FCC did allow for specific exemptions including a one-time response text and time sensitive financial and healthcare related texts.

Do monitor text logs.

Companies should monitor text logs to ensure opt-outs are not missed. Generally, companies include the option to opt out of receiving future texts by including a “Reply STOP” or “Reply QUIT.” However, companies should monitor text logs to ensure consumers who may respond with other words, such as “END,” or may use punctuation are placed on the Do Not Text list.

Don’t ignore more restrictive state rules.

Companies must consider state rules before beginning any text messaging campaign. A more restrictive state rule always trumps federal rules. Some states have different consent requirements regarding solicitous and informational calls/texts to wireless numbers. Various states also have more restrictive calling/texting times than those set out in the federal rules. Companies must analyze the rules of any state prior to launching the text message campaign and have a formal process in place to be notified of any changes to the regulations for marketing to wireless numbers.

Do look for cases that will set the foundation for future rulings.

The most difficult aspect of this new Ruling is just that-it’s new. A solid foundation for the interpretation and application of the Ruling has yet to be set. Courts are just now beginning to address cases regarding the new Ruling. It’s important that your company keep an eye on any court decisions that might help clarify this broad new Ruling.

According to Pew Internet Research, over 90% of U.S. households own mobile phones. This opens up the door to ever-advancing opportunities to market via mobile phones. Further, according to the Direct Marketing Association, 33% of U.S. consumers claim they prefer to receive marketing offers via text messages. Therefore, it is important to understand the rules and regulations before sending any text messages to consumers. Please feel free to reach out to consulting@compliancepoint.com for more information on the requirements regarding text messaging campaigns or other direct marketing compliance matters.