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SMS Marketing Compliance Introduction
SMS Marketing Compliance Introduction

Overview of TCPA and associated SMS marketing laws and regulations for retail and eCommerce store managers.

Updated over a week ago

SMS marketing is a highly effective way for businesses to communicate with their customers. Not only does the SMS communications channel have high open rates, it also has incredibly high action rates.

As a retail and/or eCommerce store manager, before you gather SMS contacts or start sending promotional text messages, it’s crucial that you understand the details of SMS compliance laws and regulations.

What is TCPA?

The 'TCPA' or Telephone Consumer Protection Act, was enacted by the Federal Communications Commission (FCC) in 1991. TCPA and its accompanying regulations, control how businesses can use SMS and MMS text messaging services to contact their consumers.

In short, the TCPA’s regulation of text message marketing campaigns can be explained in the following statement:

Consumers have the right to not receive unsolicited marketing communications via SMS, and businesses should not send consumers automated SMS marketing text messages unless they have first obtained the consumer’s express written consent.

Important things to know about TCPA:

You must have 'express written consent' before sending SMS messages to the customer. Evidence may include electronic or digital forms of signature, website form submissions, point-of-sale opt-in or text message opt-in.

Please note:

  • The customer must willingly opt-in to receive SMS communications. You are not allowed to automatically opt-in customers by having the opt-in checkbox pre-selected.

  • You are not allowed to require the customer to opt-in to their SMS program as a condition to purchase.

  • Your opt-in method must contain a “clear and conspicuous disclosure” or explicit language that notifies the customer that they are subscribing to receive promotional SMS messages from your store.

⚠️ Important: To obtain proper "express written consent" from customers there may be changes that you need to make to your store settings, online checkout, and point-of-sale staff training.

SMS campaigns can only be sent during waking hours

TCPA has placed restrictions on sending times to protect customers from receiving SMS customers at unwanted times. You can only send SMS campaigns to your customers during their 'waking hours' between 8 am and 9 pm.

⚠️ Important: Marsello has put in place safeguards to ensure SMS campaigns sent to USA-based customers, cannot be sent outside of these time regulations (i.e. during quiet hours).

If you schedule an SMS campaign during the quiet hours, the SMS campaign will be placed on hold and sent the following morning. The waking hours that Marsello adheres to are between 8:00 am and 6:00 pm Pacific Time (PT).

📝Note: We do not base waking hours off of the customer's phone number area code or location - as they can easily be in a completely different time zone than their area code alludes to. By staying within a set time frame, we are protecting your customers no matter where they live or travel.

Adhere to CTIA’s frequency & content regulations

The Cellular Telephone Industries Association or "CTIA" is an organization created by mobile carriers to regulate message content and frequency. Ultimately, they aim to ensure messages that consumers receive are messages consumers WANT to receive. Businesses looking to use text messaging to communicate with customers need to adhere to the CTIA’s Principles and Best Practices Guidelines.

⚠️ Important: To obtain proper “express written consent” from customers there may be changes that you need to make to your store settings, online checkout, and point-of-sale staff training.

Best practice guidelines for receiving email & SMS marketing opt-in:

When receiving consent, it is also recommended to set your customer's frequency expectations

  • Frequency: You must set the customer's expectation on the SMS Campaign frequency and match this expectation. When getting opt-ins, you must be specific about the type of text messages you’ll be sending including how often the customer is likely to receive SMS messages from your store. SMS Campaigns best practice recommends sending 2 - 4 SMS campaigns per month.

When writing SMS content:

  • Content is generally considered 'restricted' or 'in violation' of these guidelines if it contains any of the following; Sex, Hate, Alcohol, Firearms, Tobacco & other dangerous goods also known as S.H.A.FT. These types of text messages can’t be sent due to moral and legal issues.

As of recently, S.H.A.F.T. also covers any messages that contain verbiage related to Vaping, CBD, marijuana/cannabis, and any content associated with these.
Both mobile carriers and SMS service providers (like us) take compliance seriously, which is why messages that contain words remotely related to the categories listed in S.H.A.F.T., will be flagged by providers and blocked by carriers.

Although not technically a law, the S.H.A.F.T. guidelines should be taken seriously by anyone using SMS to communicate with consumers in order to remain compliant with the CTIA best practices and carriers’ requirements.

⚠️ Important: Marsello is monitoring message content and frequency to protect list integrity.

Customers must be able to easily withdraw consent at any time

All SMS campaigns must clearly display an opt-out method for your customers to be able to easily withdraw from your SMS marketing.
Marsello automatically includes a 'Reply "STOP" to opt-out' in every SMS campaign sent via Marsello. If the customer opts out, their Marsello customer profile is updated to remove SMS as an available channel to contact that customer.
Keep an audit trail

TCPA rules state that you must keep records of consent from each customer. To protect your business from future disputes, it's advisable to:

  • Maintain each customer's consent for at least four years from that date in which it was given.

  • Maintain a list of customers who do not wish to be contacted (never given consent).

  • Maintain a list of customers who have withdrawn consent (note these requests must be honored for five years).

Disclaimer: The information provided here is intended to be educational and should not be construed as legal advice. Marsello encourages all of our users — and all retail and/or eCommerce merchants – to seek legal advice for counsel on how they specifically should prepare.

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