Texting and Consent: What Businesses Need to Know About the TCPA
Conversational texting between companies and consumers is the future of business communication. But this new format for business-to-consumer interaction falls under regulation of an old law – the Telephone Consumer Protection Act (TCPA). It’s pivotal for companies to understand the purpose, risks and best practices associated with the TCPA in order to protect their business and provide a positive customer experience.
The story behind the law
Congress enacted the TCPA in 1991 to protect consumers from robocalls, which had broadly expanded telemarketers’ ability to reach customers on personal mobile phones. The new law restricted the use of an “Automatic Telephone Dialing System” (ATDS), which gave companies the ability to call numbers at random and at a mass scale. The TCPA protected consumers by preventing these intrusive business practices and unwanted marketing messages. Since then, technology has evolved and rulemaking has extended the scope of TCPA to apply to new technologies, including text messaging. Today the TCPA limits how businesses can contact consumers more generally on their mobile phones, and allows consumers to opt out of receiving calls and texts they don’t want.
What this actually means
The bottom line is that businesses need to have consent from the individuals or companies that they are calling or texting. Consent can be a confusing landscape to navigate because there are different levels of consent depending on the context of the message and the technology being used to send it.
When a customer initiates a text conversation, you can assume they expect an in-kind response, and therefore are providing consent. As long as the text exchange goes ahead naturally based on a call-and-response pattern, it is no different from answering the phone and engaging in conversation.
But when a business initiates the text conversation, it can fall into one of two categories: marketing or non-marketing communication. Marketing communication takes place when a company’s intent is to solicit a product or service. Companies need to receive explicit consent from consumers to engage in marketing communication.
Alternatively, non-marketing communication includes providing information or customer service to someone who has already expressed interest in your product or service. In these situations, customers may provide implied consent based on the flow of conversation. To confirm consent, an employee can also introduce himself or herself and ask for permission to continue texting, or permission to initiate a text conversation can be included in a web or paper contact form when the phone number is collected.
Revoking consent
If a consumer makes a do-not-contact request by opting out of a texting program, then consent is revoked and the company should not contact them again. Typically, in the texting ecosystem, opt out is supported with the keyword STOP. When a consumer sends a text with the word STOP, the business should take them out of all recurring texting programs and cease text message contact in the future.
There are two ways to implement the STOP command:
- Manual: Some texting service providers provide no support for the STOP keyword and leave businesses to respond to consumer requests manually.
- Automatic: The most secure texting platforms implement a STOP keyword at the network layer, so every consumer request is processed automatically.
Businesses should seek a texting platform that supports the STOP keyword at the network layer because that means opt-out requests are handled automatically.
Common sense best practices
Do:
- Keep texts short and relevant
- Text consumers who’ve expressed interest in your business, or with whom you’ve spoken before
- Share information and send reminders, confirmations and follow-ups
- Let customers know they can text STOP to opt out
Don’t:
- Add promotional language that isn’t related to the conversation at hand
- Send texts to prospects you have no existing relationship with
- Attempt to promote or sell a service over text out of nowhere, without permission
- Spam consumers with unwanted messages
It’s important for businesses to remember that real two-way texting conversations are not only usually compliant, they offer the best way to strengthen customer relationships. Companies that want to invest in a business-texting platform to help optimize their operational performance and efficiency should consider choosing one that takes a compliant-by-design approach to the TCPA and supports conversational texting.
Please note: If you are concerned that you or your employees may be engaging in conversation that violates the TCPA, it’s best to get legal advice from a licensed professional. The best practices above provide only a brief overview of certain TCPA requirements, and does not constitute legal advice.