USA TCPA Compliance
New Telephone Consumer Protection Act (TCPA) - USA ONLY
The Federal Communications Commission (“FCC”) in the United States introduced new rules under the Telephone Consumer Protection Act (“TCPA”) that went into effect on October 16, 2013. The TCPA makes it unlawful for a person to “initiate” a telephone call to a residential line and to wireless numbers for non-emergency purposes without the prior express written consent of the called party. In lay terms, for people using the MOBIT or any other text service for marketing, this means you must adhere to the new rules when marketing in the USA via text/SMS. The TCPA applies to both voice and short message service (SMS) text messages, if they are transmitted for marketing purposes. The TCPA provides for a private right of action with damages ranging from $500.00 to $1,500.00 per unsolicited call/message.
What's new
The new rules require marketers to:
Obtain prior consent before sending SMS/text marketing messages. Consent must be unambiguous, meaning:The consumer must receive a clear and conspicuous disclosure that he/she will receive future text messages on behalf of a specific marketer; and his/her consent is not a condition of purchase; and he/she much designate a phone number to which messages will be delivered (which should not be auto-populated by the marketer in an online form).
Obtain express written consent, even if you had a prior business relationship with the consumer. Therefore, for example, phone numbers gathered at the point of sale or purchase without express written consent for SMS opt-in are not approved for ongoing promotional use. The prior business relationship exception under the TCPA no longer applies.
How is “consent” defined?
The FCC has determined that written agreements obtained in compliance with the E-SIGN Act will satisfy the requirements of the rule, such as, for example, agreements obtained via text message, website form, and other valid forms (see FCC link for more info: http://www.fcc.gov/document/telephone-consumer-protection-act-1991).
Are any types of messages excepted from these regulations?
All marketing messages are required to comply with these express written consent regulations. Some small exceptions exist, including messages sent by schools, cellular carriers, and healthcare-related messages. Purely transactional messages (e.g. account alerts, travel updates, shipping notifications, etc.) are also exempt so long that they do not include any promotional content.
What you must do to comply:
If you don’t have express written consent for all, or some, consumers on your marketing list—or you’re not sure—you are now required to re-opt-in those numbers before if they did not do so before October 16, 2013. Example one-time campaign: “[Company] would like to continue to send you SMS @ this number. 2msgs/mnth. Text HELP for help. STOP to end. Msg&data rates may apply. Reply KEYWORD to confirm today.”
Remove any auto-population of phone numbers on any online web form collecting consent for sending SMS marketing messages (the consumer must enter his/her phone number into the form in order to comply).
How MOBIT helps you to comply
Although the TCPA applies to the United States only, MOBIT have adopted these process as best practice and recommends that our international clients outside the USA adhere to these guidelines in order to provide the best and most professional experience to their audience.
In compliance with MOBIT's best practices and guidelines (in addition to contractual obligations), you are required to confirm that all phone numbers used for promotional SMS/text have been collected with express written consent. There are three ways with MOBIT that you can do this, these are:
You complete our opt-in permission form when importing your contacts into MOBIT. A valid and approved permission method accepted by the TCPA is to have a voice recording of your contacts opt in confirmation. This recording must state the number of messages your contact anticipates to receive and outline the process and numbers for them to opt out. The voice message must be saved for a period of five (5) years.
Your contact responds to your KEYWORD campaign. MOBIT automatically send these contacts an approved TCPA opt-in message for them to accept. Once they do so, their permission is recorded in our database and held for a period of five (5) years as legal proof. If the same contact 'unsubscribes' or opts-out of your marketing then this is recorded against their contact record and MOBIT will not allow any messages to be sent to this contact. The only way this can be changed is for your contact to opt back in via the web widget form we provide for your website or by texting in your opt in KEYWORD.
MOBIT provide you with a web widget form that you can customize for branding purposes and place on your website. This form has all the required TCPA wording and automatically enters the contact details and permission into MOBIT when completed.
Each and every MOBIT landing page template includes predefined and TCPA compliant links to our Terms and Conditions, Anti spam and Privacy Policies. We also provide a clearly highlighted UNSUBSCRIBE button where users can opt-out to your messages at any time.
Additional Information:
If you are unsure of how this new legislation effects you in your specific country then please be sure to consult with your legal counsel and review the full country specific anti spam legislation at the links below.
For USA - http://www.fcc.gov/document/telephone-consumer-protection-act-1991
For New Zealand - http://www.dia.govt.nz/services-anti-spam-index
For Australia - http://www.comlaw.gov.au/Series/C2004A01214
For United Kingdom https://ico.org.uk/for-organisations/guide-to-pecr/electronic-mail
The information here is provided for informational purposes only. It is neither legal advice nor a substitute for obtaining legal advice from your attorney. We recommend that you consult your legal council before engaging in mobile marketing activities.