SMS Strategies

What Marketers Need to Know About SMS Compliance in the US

sms compliance
Published
Sep 20, 2021
Written by
Pia Tserkonis
Pia is a Senior Manager on the Product Marketing Team. During her logged off hours she enjoys traveling, acrylic fluid painting, and long road trips.

Before getting started with this powerful marketing channel, make sure to familiarize yourself with these key requirements and regulations.

Disclaimer: the materials in this article are for informational purposes only, and not for the purpose of providing legal advice. You should contact your legal counsel to obtain advice with respect to any particular issues or problems.

Similar to email—which has a set of laws for remaining compliant—SMS is a regulated channel with its own specific rules and requirements. In many cases, it’s illegal to send unsolicited text messages to consumers—and penalties can be steep—so it’s important to be informed about best practices for SMS compliance.

In the United States, you must be compliant with the Telephone Consumer Protection Act (TCPA)—which is a federal law—related state laws, and the guidelines of the Cellular Telecommunications Industry Association (CTIA)—a wireless communication industry trade organization.

At a high level, SMS compliance requirements in the US include the following:

  • Your subscriber must explicitly opt-in for SMS marketing in writing, and it has to be a separate opt-in from email marketing. 
  • You must explain to potential subscribers what types of messages they’ll receive and clearly state how they can opt out. 
  • You must respect opt-out requests. 
  • You can’t send text messages during federal- and state-specific “quiet hours.”

In this post, we’ll walk you through the basics of SMS compliance—including TCPA, CTIA, and ADA regulations—to help you build a foundational understanding of how to launch your text message marketing channel. 

Telephone Consumer Protection Act (TCPA)

The Telephone Consumer Protection Act (TCPA) is a federal law passed in 1991 that requires marketers to obtain express written consent from mobile subscribers before sending them text messages. 

“In 1991, SMS wasn’t really a tool that people used, yet,” says Troy Lieberman, Associate General Counsel at Attentive. “You have this dated law that’s trying to keep up with today’s technology.” Make sure that your SMS vendor has the expertise to provide you with guidance and recommendations on how to navigate the laws and remain compliant.

“SMS compliance has so many nuances that are constantly changing based on court rulings and decisions from the Federal Communications Commission (FCC),” said Lieberman. “You need to have a strong legal and compliance foundation before engaging in any SMS marketing.”

One of the most important things to keep in mind with TCPA is making it clear to potential SMS subscribers that, by joining your text program, they’re signing up to receive recurring automated text messages. You can't bury this consent language at the bottom of your sign-up unit or landing page, or behind a link that the user has to click through to see. It needs to be clearly visible and in close proximity to the call to action.

“Consumers need to knowingly and voluntarily opt in to receive text messages from your brand. It needs to be clear and conspicuous that by providing your phone number, you are opting in to receive automated text messages from this brand. There’s other required language outlined in the regulations themselves, but the bottom line is that it needs to be very clear and upfront,” added Lieberman.

A best practice for any SMS sign-up method is to enable double opt-in. After a potential subscriber has provided their phone number (through a web form, by sending you a Text-to-Join keyword, or on your mobile site), they should be automatically prompted to send a message (reply “Y”) from that phone number to confirm they want to be subscribed. 

With Attentive’s secure two-tap sign-up on mobile, your brand won’t need to worry about double opt-in, because the sign-up unit is designed with this already in place. After the potential subscriber lands on your website, they’ll be prompted to sign up for your text program. After they tap the button to sign up, a pre-populated text message will appear in their text inbox. They simply press send to opt in and begin receiving messages from your brand.

“It's a great way to validate and verify that the phone number provided is for the right person, and that they really want to receive these recurring text messages from your brand,” said Lieberman. “It's another touchpoint to show that this person really consented and opted in.”

You also need to make it easy for subscribers to opt out, and you’re required to honor any opt out. Text message responses such as “stop,” “end,” or “unsubscribe”—with variations in capitalization—need to be recognized by your SMS platform as an opt out request. 

Cellular Telecommunications Industry Association (CTIA)

In addition to TCPA regulations, there’s a set of industry self-regulatory requirements administered by the Cellular Telecommunications Industry Association (CTIA). The CTIA is a trade association that represents the US wireless communications industry and provides requirements in their Short Code Monitoring Handbook and Messaging Principles and Best Practices.

Like the TCPA, the CTIA also requires clear opt-in consent, and details can’t be hidden or buried in the Terms and Conditions. Other requirements include:

  • All programs must display a clear call to action. Users must understand exactly what they’re signing up to receive (recurring marketing text messages).
  • Clearly labeled Terms & Conditions and Privacy Policy links must be displayed in the opt-in unit.
  • After a subscriber joins your SMS program, you must send them a message that includes the description of the recurring program (e.g. Text alerts from Hudson & Ivy), the message frequency (e.g. Msg frequency is recurring), a disclaimer that message and data rates may apply, and information about how to get help or opt out.
  • Subscribers must be able to opt out at any time by responding with “stop,” “end,” “cancel,” “unsubscribe,” or “quit.”
  • Subscribers must be able to get help by responding with “help,” which should automatically return the program name and information about how to get more help.
  • Outgoing text messages must include your brand’s name.
  • Content such as (but not limited to) hate speech, certain firearms, and violence cannot be promoted via text message.
  • Programs must display opt-out instructions at regular intervals (at least once per month) in content or service messages. Opt-out information must be displayed on the advertisement or within the Terms & Conditions.

The Americans With Disabilities Act for Accessible Design (ADA)

The Americans With Disabilities Act for Accessible Design (ADA) is a civil rights law that prohibits discrimination against individuals with disabilities in all areas of public life and requires reasonable accommodations for anyone who is impaired. Website accessibility is governed by the Web Content Accessibility Guidelines (WCAG). 

With over one billion people (15% of the world’s population) being differently abled, it’s important to respect consumers of all ability levels.


ADA guidelines you need to know for SMS

Here are the WCAG guidelines—in regards to your SMS marketing program—used to achieve accessibility. 

  1. Perceivable: All website visitors should be able to see, read, or listen to the content on your website (Guideline 1.4.3). The visual representation of text and images of text should have a contrast ratio of at least 4.5:1.
  2. Operable: All users should be able to easily interact with and navigate through your brand’s website through a keyboard interface in addition to mouse inputs (Guideline 2.1.1).
  3. Understandable: The content and instructions on your website should be clearly written with a meaningful information architecture (Guideline 3.3.1). If an input error is detected, it’s identified and described to the user through text.
  4. Robust: Assistive technologies should be able to read and understand the interface and content on your website. (Guideline 4.1.1). Any content elements that use markup language (e.g. HTML) should have complete start and end tags and unique IDs—and should not contain duplicate attributes. 

How Attentive places SMS compliance at the forefront

Our in-house legal team includes experts on TCPA law and we maintain close relationships with regulators and carriers that help set and enforce the industry guidelines for text message marketing. Our compliance tools include:

  • Audit trails to help protect our customers against TCPA lawsuits 
  • Automatically-recognized opt out keywords and fuzzy opt-out tools that help remove subscribers who no longer want to be subscribed
  • Sign-up units built with ADA compliance in mind—including valid HTML so that users who rely on assistive technology can easily subscribe to your email and SMS lists

We provide in-app validations and visual references that help check whether there is sufficient color contrast between the text color and background color on your SMS creatives. 

All clickable elements of your brand’s sign-up units—including the close (x) icon, input fields, and buttons—are accessible through a keyboard, meaning users can access and move between links, buttons, forms, and other controls using the Tab key and other keystrokes. This is important for web visitors who can’t use a mouse, can’t see the mouse pointer on their screen, or those who should limit or avoid use of a mouse. 

Custom error messages on our sign-up units help identify empty fields or incorrect email and phone number formats, so the user can quickly and easily correct the error. 

As retail and e-commerce sales continue to grow in the US and beyond, SMS has become a “must-have” tool in marketers’ tech stacks. Working with the right SMS vendor is a critical first step in making sure your channel is compliant now—and stays that way in the future. 

Get more insights into how you should be thinking about growing your SMS list with compliance in mind by tuning into Privy’s Ecommerce Marketing School podcast episode on how to grow your text list from the ground up.

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