The Essential TCPA Compliance Checklist

Many brands incorporate SMS marketing into their omnichannel strategy—and for good reason. SMS messages achieve an open rate of up to 98%, compared to email’s 20%. Plus, consumers generally see SMS as a convenient way to stay in touch with brands.

However, you can’t just start bombarding customers with marketing messages. There are rules, and you must follow them.

The Telephone Consumer Protection Act of 1991 (TCPA) provides the rules for telemarketing communications, with the Federal Communications Commission (FCC) having the authority to enforce compliance. Companies that violate the TCPA face fines ranging from $500 to $1500 per infraction.

So, we’re here to help you play it safe, providing our TCPA compliance checklist to guide you through the regulatory landscape for SMS marketing success.

What are TCPA Regulations?

The TCPA is a federal statute enacted in 1991 to regulate telemarketing and safeguard consumer privacy. It establishes the regulations around telemarketing texts, calls, and faxes, and it imposes strict fines for non-compliance.

Under the TCPA, companies can’t solicit customers via text messages without explicit consent and must promptly honor opt-out requests. The Act also allows consumers to sue a company that fails to follow TCPA guidelines, resulting in fines for violators.

Fines depend on the nature and volume of violations. The standard fine is $500 per violation for each unwanted call, text, or fax, but intentional or willful violations triple the fine to $1500 per infraction. The FCC can also impose penalties of up to $10,000 per unauthorized instance.

Widespread and repeated violations may trigger TCPA class action lawsuits, leading to multi-million dollar settlements and reputational damage. You can avoid such penalties by securing consent from contacts before texting them, avoiding buying contact lists, and keeping this SMS compliance checklist handy.

Your TCPA Compliance Checklist for SMS Marketing

Before launching any SMS marketing campaign, consider this TCPA checklist to stay compliant and avoid hefty fines.

1. Obtain Express Written Consent

TCPA requires companies to acquire explicit or express written customer consent before sending marketing texts. This means customers must sign a document or check a box to confirm they’re okay with receiving your marketing messages.

For example, you can include a consent request on all forms or send a follow-up opt-in text message to obtain their express consent. Note that consent can only be valid if it’s transparent, voluntary, documented, and includes a clear opt-out option.

Remember to retain records of customer consent for future reference and to protect yourself from a range of legal issues. The records serve as a binding confirmation that the customer understands and agrees to the terms of communication.

Express Consent vs. Implied Consent

Never mistake implied consent for express consent. What’s the difference? 

Express consent is in writing or through an electronic signature, while customers give implied consent through their actions or conduct.

For instance, if a customer shares their contact details when downloading files or making a purchase, that’s implied consent. This does not constitute consent to receive automated marketing messages and communications, as stipulated under TCPA guidelines.

That said, there are exceptions. You may send SMS messages directly related to customer’s actions if they provide their contact details. For example, if a customer shares their number during a purchase, you can text them with feedback requests or product information.

2. Clearly Identify Your Business

Marketing text messages must clearly state your business name and contact information. Your customers must know exactly who is contacting them and why. Proper identification is vital for building trust and ensuring compliance with TCPA regulations.

Here is an example of a well-crafted text message:

Hi (FIRSTNAME), this is (COMPANY). We're reaching out to let you know about our exclusive offer on [product/service]. Reply 'YES' for more information or 'STOP' to opt out. Thank you!

The message must be precise and clear, so avoid using abbreviations or codes that could confuse recipients about your identity. Instead, your business name must be easily recognizable at the beginning of the message.

3. Provide Clear Opt-Out Instructions

Even if customers initially consent to receive your SMS messages, they may want to unsubscribe at some point. TCPA demands that your messages provide a straightforward opt-out mechanism to allow customers to stop receiving the texts at any time.

For example, add a simple text command like “Reply 'STOP' to opt out” or “Reply STOP to STOP” at the end of the message. Make sure to promptly remove customers who opt out from your communication lists to avoid further TCPA violations, and keep a record of all opt-out requests. 

You can also automate the opt-out requests using a tool like Mozeo. This will help eliminate manual processes that might result in costly errors, like forgetting to honor a customer’s request.

4. Adhere to Approved Messaging Windows

You can’t send marketing text messages at any given time. The TCPA only allows companies to send telemarketing texts and calls between 8 am and 9 pm in the recipient’s local time. Pay attention to customers’ time zones before scheduling communications.

Besides, segmenting your customers by their time zone, area code, state, or other variables are generally considered a marketing best practice. You can then leverage automation tools to put your SMS marketing strategy on autopilot. Artificial intelligence (AI) can make this even easier, allowing you to create workflows that automatically contact customers within the permitted hours.

 5. Maintain a Do-Not-Call List

The TCPA requires businesses to maintain internal do-not-call (DNC) lists, which they must honor for at least five years or until a customer opts back in. You must update the list regularly and honor the wishes of customers who have opted out of receiving marketing messages.

Regardless of your business relationship, a customer removal request supersedes any previous written permission. It’s also important to have clear procedures for documenting DNC requests, as the FTC can take legal action against your business due to a lack of “effective procedures” for documenting DNC lists.

Additionally, the law gives customers a broader-reaching option to deny most telemarketing calls and texts. They can register their home or mobile phone for free on the National Do Not Call Registry, which the Federal Trade Communication (FTC) maintains and all organizations must abide by.

6. Know the Difference Between Calling and Texting Regulations

Under TCPA regulations, calling and texting fall under the same consent rules—customers must explicitly consent to receiving telemarketing calls or texts. However, there are a few distinctions, such as the FCC’s law treating text message communication more strictly than phone calls.

For example, the law considers all automated texts as telemarketing that requires prior express written consent. In contrast, non-automated calls to landlines have more relaxed consent rules than calls to mobile phones or those made using automated systems like robocalls.

Customers can opt out of telemarketing calls by registering on the National Do Not Call Registry or internal DNC registers. Opting out of text messages, meanwhile, requires replying 'STOP.' An effective automated system like Mozeo’s opt-out feature can handle these requests for you.

Keep Updated on Communication Guidelines with Mozeo

All telemarketers must obtain consent from consumers before sending text messages—the TCPA demands it. Failure to comply can lead to steep fines, while widespread violations can result in costly settlements and significant reputational damage.

But it never needs to come to that. At Mozeo, we’re here to cover your bases and help you comply with TCPA regulations. Our TCPA compliance checklist covers all the essentials, providing clear guidance on handling consent, messaging, and opt-outs.

Mozeo’s powerful text messaging tool ensures you’re TCPA-compliant by automatically sorting and removing customers who have opted out to prevent potential violations. Plus, with our group-sending feature, you can segment customers by time zone to send messages within the permissible hours.

Ready to elevate your SMS marketing? Request a demo or contact us today to discover how Mozeo can support your SMS marketing while keeping you TCPA-compliant.