August 26, 2013

Changes to TCPA Include New Restrictions on Text Message Marketing

One of the fastest growing channels for outbound marketing is text messaging. It’s also a tightly regulated channel that was one of the first in the US to require marketers obtain direct opt-ins before sending messages, rather than simply making it easy to opt out.

We’ve covered how big brands are benefiting from text message marketing, as well as suffering the consequences of noncompliance. While there are challenges to adopting text message marketing, it can be a powerful tool to grow your business when used compliantly.

Doing so is about to become a little more challenging, thanks to revisions to the TCPA rule going into effect in October.

The FCC and the courts consider text messages to be “calls” for the purposes of the TCPA rule. The forthcoming changes to the TCPA means text message campaigns will need to meet the same standards, including the requirement for marketers to obtain express written consent requirement, which we discussed earlier in this series.

Marketers always had to obtain express consent – a clear opt-in – before sending marketing text messages to consumers; implied consent never cut it. The signature requirement and disclosure obligations under the revised TCPA are new. The updated TCPA rule specifies that marketers can obtain express written consent according the federal E-SIGN Act via “email, website form, text message, telephone key press, or voice recording”.

Aside from the complexities surrounding what entails express written consent,what makes this change complicated for text message marketers is that the burden of proof falls squarely on the shoulders of the marketer. Businesses must:

  •  Provide a “clear and conspicuous disclosure” that they intend to send marketing text messages to the number a consumer is providing
  • Document having done so in the event of a regulatory investigation
  • Document unambiguous consent from the consumer

Regulations like these are almost a requirement for automatic audio capture, but are at the very least a clear indication that most businesses need to be doing more to ensure they are setting clear expectations with consumers, obtaining unambiguous consent, and thoroughly and automatically documenting every step in the process.

We’ll cover the challenges associated with marketers assuming the burden of proof for compliance with the law next week.