Creating a successful SMS marketing strategy isn't just about crafting the perfect message or growing your subscriber list. Sending SMS messages to your audience, be they prospects or existing clients, involves navigating legal and compliance requirements before launching your campaigns. It's crucial to keep your strategy aligned with SMS compliance rules and texting laws.

But with the intricacies involved, where's the best place to begin ensuring compliance for your SMS campaigns? Which governing bodies and rules do brands need to be familiar with before getting into SMS?

At Drips, one of our core tenets is “Keep It Safe.” Keep It Safe means that we put compliance first with everything we do for our clients and we stay on top of important regulations with the help of our expert counsel. So, we consulted the Czar of TCPAWorld.com himself, our regulatory attorney Eric Troutman, to get the answers about SMS rules and governing bodies.

“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,” he explained.

Troutman went on to say, “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. This stuff is navigable, but all in all, it’s probably best to consult counsel before deploying any outreach strategy.”

First, Seek Legal Counsel

Before embarking on your SMS marketing journey, it's essential to engage legal counsel specialized in SMS marketing regulations and compliance laws. They'll help you navigate through the process, ensuring your strategies align with legal requirements.

Understand The Key Players

• Federal Trade Commission (FTC): They investigate consumer complaints about fraudulent or misleading texts. They also maintain the National Do Not Call (DNC) Registry and manage the Telemarketing Sales Rule (TSR).
• Cellular Telecommunications Industry Association (CTIA): They set industry standards and best practices.
• Federal Communications Commission (FCC): They provide detailed guidelines on marketing laws, dictating permissible content and actions within messages.
• Consumer Financial Protection Bureau (CFPB): They enforce compliance with federal consumer financial protection laws.

Why Are There So Many Organizations And Regulations?

Rapid technological advancements have revolutionized communication channels, presenting both opportunities and risks. While these innovations offer unprecedented connectivity, they also create avenues for exploitation and misuse. Regulatory bodies and laws stand as safeguards, aimed to protect consumers from unsolicited messages, scams, and deceptive marketing practices.

More On SMS Compliance Organizations

Federal Communications Commission (FCC)

The Federal Communications Commission (FCC) is responsible for regulating interstate and international communications by radio, television, wire, satellite, and cable in the United States and its territories. FCC rules and regulations, as well as their declaratory rulings, orders, and guidelines, describe in detail what you can and can’t do or say in text messages.

Federal Trade Commission (FTC)

As a primary protector of consumer rights, the FTC stands as the frontline investigator against fraud and deceptive business practices. Their role includes following up on complaints people make about businesses that use texts or calls to “scam” people.

Cellular Telecommunications Industry Association (CTIA)

Calling themselves “the voice of America’s wireless industry,” the CTIA publishes best practices to enhance the security and accessibility of mobile communications (CTIA). The CTIA also advocates for the U.S. wireless communications industry to government bodies. The CTIA focuses on policies and regulations that encourage the wireless industry in America to evolve.

The group is made up of individuals with a background in wireless, telecommunications, and technology, making them experts in the field. Not only do they create best practices, but their actions are informed by industry experience.

Consumer Financial Protection Bureau (CFPB)

The Consumer Financial Protection Bureau (CFPB) issues rules and enforces federal consumer financial protection laws such as the Fair Debt Collection Practices Act (FDCPA). It also enforces laws against unfair, deceptive, or abusive acts and practices (UDAAPs).

Important SMS Outreach Rules And Regulations

Telemarketing Sales Rule (TSR)

According to the Telemarketing Sales Rule, telemarketers are required to set limits on call duration, disclose specific information to prevent misrepresentation, and refrain from contacting customers who have opted out. The rule also enforces payment restrictions for certain products and services.

Telephone Consumer Protection Act (TCPA)

The Telephone Consumer Protection Act (TCPA) is the cornerstone of telemarketing regulations at the federal level. The TCPA contains rules for individuals and businesses engaged in these telephone solicitations. This includes voice calls, faxes, and VoIP calls, as well as text messages.

While there's plenty to know about the TCPA, let’s go over some important aspects of TCPA compliance.

Express Written Consent

SMS compliance hinges on obtaining consent to contact each customer. According to the TCPA, sending marketing messages via text mandates permission from consumers. The exact nature of the consent required can vary depending on customer location, the method of contact, the purpose of the outreach, and other factors. “Express written consent” is the strictest form — and the most ironclad when it comes to TCPA compliance.

Texting without authorization can result in fines ranging from $500 to $1,500 per incident (Contact Center Compliance).

FCC’s Recent Order

On December 13, 2023, the FCC issued an Order which changes a few key TCPA requirements:

The Order requires:

1. Prior express consent must be directly between the consumer and the seller. Prior express written consent means an agreement that “authorizes no more than one identified seller” to contact a consumer. Importantly the word “seller” means the company providing goods or services to a consumer.
2. The scope of consent is one that can be reasonably inferred from the purpose of the website on which the consumer provided consent. Texts and calls that result from consumer consent obtained on comparison shopping websites must be logically and topically related to that website.
3. The texter or caller must retain proof of consent for the text or call the seller makes. A caller or texter who is unable to meet its burden of proof in demonstrating that it had valid consent to call or text the consumer can be liable under the TCPA.

These changes go into effect January 2025.

Opt-Out Procedure

Ensuring a straightforward opt-out method is mandatory. Permitting customers to text “STOP” to halt marketing messages showcases adherence to regulations.

Our Disqualified by Drips technology goes beyond these simple opt-out methods and uses AI to recognize the countless ways that consumers can express a wish to opt-out. This makes opting out more intuitive for consumers and can help brands better comply with this aspect of the TCPA.

Appropriate Timing

Observing appropriate timing for texts is also important. According to the TCPA, contacting subscribers via text or call before 8:00 a.m. or after 9:00 p.m. is a violation of SMS marketing compliance laws.

National Do Not Call Registry (DNC)

In 2003, the FCC worked with the FTC to create the National Do Not Call Registry. The DNC requires “express consent” to contact residential numbers on the national DNC list using any dialing mechanism. This includes texting.

But Wait, There’s Even More

These are just a few of the regulatory bodies, laws, and best practices you and your vendors should be cognizant of when sending SMS messages. But there’s much more to texting compliance, such as industry-specific laws that you will want to research depending on your business. Ultimately, the correct compliance procedures should be determined by working with qualified legal counsel.

Keep It Safe With Drips

When it comes to keeping your SMS program compliant, choosing the right outreach solution can make a huge difference. Here at Drips, we always keep SMS compliance at the forefront as we manage conversational outreach for our clients. We make sure you have the tools to keep your SMS campaigns running compliantly and reduce the burden on your team.

Find out more about our SMS compliance solutions.

Disclaimer: This blog and all information contained in it does not, nor is it intended to, constitute legal advice; instead, all information and content herein is for educational and informational purposes only. Information in this blog may not constitute the most up-to-date information, and Drips, the writers of this blog, and any contributors or contributing law firms herein disclaim any obligations relating to the timeliness or accuracy of the information contained here. No warranties should be implied. All liability with respect to any actions taken or not based on the contents of this blog is expressly disclaimed. Readers should consult with an attorney to obtain advice with respect to any particular legal manner, and no reader should act or refrain from acting on the basis of information on this blog without first seeking legal advice from counsel in the relevant jurisdiction.