Text messaging is governed by an entirely different set of requirements compared to emails. In the United States, text messaging governance is controlled by the Federal Communications Commission (FCC) because a cell phone is classified as a radio transmitter. The governing law is the Telephone Consumer Privacy Act (TCPA) because a cell phone is a telephone. In Canada, the law governing text messages is Canada’s Anti-Spam Legislation (CASL).
The laws governing SMS marketing are very strict and the penalties for non-compliance are extremely heavy — more so than enforcement and penalties assessed for non-compliance to laws governing email marketing. Therefore, ensuring compliance with the regulations is critical.
It is important to follow compliance guidelines when reaching out to your contacts via SMS. There are three different types of SMS messages, each with its own compliance regulations.
Compliance Guidelines
Opt-in Consent
Compliance with SMS marketing regulations requires express consent from your contacts. Maropost does not currently support 'Text-to-Join' capabilities, therefore you are responsible for securing express consent from the cell phone owners before you can subscribe them as a contact and send them marketing text messages.
The most common means of acquiring consent and cellphone numbers are from an online form. To ensure compliance with regulations, your online form MUST contain the following elements:
- A clear description of what the person is opting-in to receive when they provide their cell phone number
- A link to a Terms and Conditions page that explains what the SMS marketing program is all about.
- A link to your Privacy Policy page.
The example below shows proper compliance for a web capture page for mobile numbers. Note how each of the required elements is clearly explained in the form.
Terms and Conditions
Your website’s online Terms and Conditions page must include a section that specifically addresses your text messaging program. This is the first page that wireless carriers will look at when evaluating whether or not you are compliant with their requirements. Consult with your legal team to ensure the proper verbiage. At a minimum, the T&C must mention the following:
- An outline of the maximum message frequency subscribers may receive
- A statement indicating the carriers are not liable for any delayed or undelivered messages
- A statement indicating that Message and Data rates may apply to any text/SMS communication
- Information on how a user/subscriber can opt-out (for example, “reply STOP to opt-out")
Privacy Policy
Your website’s online Privacy Policy is the second page that wireless carriers look at when evaluating the compliance of your text messaging program. This page must include a specific reference to your text messaging program and must include language stating that there will be no sale or dissemination of end-user information to third parties.
