The Complete SMS Compliance Guide

Who Makes The Rules

Before diving into the texting laws and compliance guidelines, it’s helpful to understand where they come from and who’s responsible for maintaining them. In the United States, there are two main entities that monitor mass texting behavior: the TCPA and the CTIA.

Text Message Laws

While both TCPA and CTIA guidelines should be strictly followed, it’s important to draw the distinction between what’s law and what’s regulation. There’s a lot of overlap between the two, however, you can view the TCPA as federal laws preventing unsolicited text messages and CTIA guidelines as carrier regulations further protecting consumers.

When it comes to litigation, however, TCPA legislation is what matters. The major theme of the TCPA is that you must obtain express written consent from people before sending them promotional text messages. Failure to do so can trigger large class-action lawsuits and penalties of $500 to $1500 per text. The good news is that getting consent isn’t that hard.

Key Takeaway

TCPA compliance is following texting laws and CTIA compliance is following the guidelines set forth by the cellular carriers.

Express Written Consent

As defined in the TCPA, express written consent is permission given by someone on paper or electronically to receive promotional messages via an autodialer.

Now you might be thinking, “What’s an autodialer? I’m not using an autodialer.” Since SMS marketing software like SlickText does not generate phone numbers, it is not an autodialer. However, this perspective does not stop potential litigators from filing lawsuits based on the TCPA. For this reason and the fact that carrier regulations require it, you should always obtain express written consent. Not to mention, failing to obtain permission before texting people will negatively reflect on your brand.

Obtaining Express Written Consent

Obtaining express written consent really isn't that hard. Remember, the TCPA definition allows for permission to be given electronically. This could be in the form of recorded verbal consent, checking a box on a web form, or simply texting a keyword to a phone number (text to join). This opens up several options for capturing consent in a compliant way.

Collecting opt-ins via text to join and web forms are the two most popular ways to obtain express written consent. We’ll cover those opt-in methods in more detail below.

Key Takeaway

Express written consent can be given electronically, which makes text to join and web popups two easy ways to collect opt-ins in a compliant manner.

Messaging Types

Now that we understand basic texting laws and regulations, as well as the concept of express written consent, we’ll cover the three types of text messaging content. These are important concepts as each requires a different level of consent provided by the consumer.

Key Takeaway

Oftentimes, it may be unclear whether a text message is informational or promotional, so you should obtain express written consent in both cases.

Collecting Opt-Ins

Now that we understand the various types of messaging and the required consent level associated with each, we can dive into how to collect opt-ins in a lawful and compliant manner. As mentioned above, it’s best to assume all of your text messaging to be promotional and that you need express written consent.

Let’s take a look at the two most common ways that SMS marketers collect opt-ins and the best practices for doing so compliantly.

The Call to Action

Text SlickText to 888111 to join our VIP text list and receive weekly specials.

You agree to receive automated promotional messages. This agreement is not a condition of purchase. Receive up to 4 messages per month. Reply STOP to opt out or HELP for help. Message & data rates apply. Terms and privacy policy can be found at slicktext.com/tc.php.

The Confirmation Message

SlickText

SlickText: Thanks for joining our VIP text list! Stay tuned for future deals.

Up to 4 msgs/month. Reply STOP to opt out or HELP for help. Msg & Data rates may apply. Terms & privacy: slicktext.com/tc.php

Key Takeaways

• Text to join is only compliant if your CTA is accompanied by the required verbiage.
• After opting in, people should receive an immediate, automated response confirming the subscription.

Web Popups or Online Forms

Another great way to capture SMS opt-ins and express written consent is with web popups or forms. Most qualified mass texting services offer these as a way to grow your list. Web popups are forms that pop up on your website that give users the ability to input their information and sign up for your texting program. Similar to text to join, there are specific requirements needed for a web popup or form to be TCPA and CTIA compliant.

Your popup or form, at the very least, will have a field where people can input their phone number. Most businesses also offer a field or two for them to provide their name.

For TCPA compliance and capturing express written consent, your popup must contain verbiage explaining that people are agreeing to receive automated promotional messages and that consent is not a condition of purchase.

For CTIA compliance, your verbiage must also include an indication of messaging frequency, that message and data rates may apply, opt-out instructions, help instructions, and links to your terms and privacy policies.

Additionally, to be CTIA compliant, immediately after submitting your popup or form, the consumer should receive an automated text message confirming their subscription. That confirmation text should include the name of your business, message and data rates may apply, help and opt-out instructions, and a link to your terms and privacy—just like with texting to join.

Here are examples of a TCPA and CTIA-compliant web popup and confirmation message.

The Web Popup or Form

Join the SlickText VIP text list and receive weekly specials!

First Name

Last Name

Mobile Number

By submitting this form, you agree to receive automated promotional messages. This agreement is not a condition of purchase. Message frequency varies. Reply STOP to opt out or HELP for help. Message & data rates apply. Terms and privacy policy found at slicktext.com/tc.php

The Confirmation Text

SlickText

SlickText: Thanks for joining our VIP text list! Stay tuned for future deals.

Msg frequency varies. Reply STOP to opt out or HELP for help. Msg & Data rates may apply. Terms & privacy: slicktext.com/tc.php

A very important thing to note is that while this flow is technically CTIA compliant, it still opens opportunities for bad actors to create problems. In this scenario, someone could input any phone number they want into your form and subscribe unsuspecting people to your text messaging program. For this reason, we highly recommend a double opt-in process when using web popups.

Double opt-in requires a confirmation text message to be sent by the consumer after submitting the web popup or form before they are subscribed.

The final opt-in flow looks like this…

1. Consumer fills out the popup or form and submits.
2. Consumer is sent a text message asking to confirm their subscription.
3. Consumer replies YES to confirm.
4. Consumer is subscribed and receives the final confirmation text message.

Key Takeaway

You should always use a double opt-in process when subscribing people via web popups. This forces people to prove who they are before being opted in.

Required Verbiage

Now that you’ve read through the guidelines for collecting opt-ins, you’ve probably noticed some common verbiage used throughout. Each is key to ensuring compliance with the TCPA and CTIA and obtaining proper express written consent.

Each of the following components are required wherever you’re collecting opt-ins. Let’s take a deeper look at each and how they all come together.

Full Compliance Verbiage

You agree to receive automated promotional messages. This agreement is not a condition of purchase. Receive up to {messages per month} messages per month. Reply STOP to opt out or HELP for help. Message & data rates apply. Terms and privacy policy found at {terms and privacy link here}.

Terms & Conditions Requirements

In order to be compliant with TCPA and CTIA guidelines, you’ll need to have a set of terms and conditions for your text messaging program. Yes, we know what you’re thinking, “Nobody ever reads this stuff.” While you’re probably right, it’s still required.

The link to your terms and conditions must be clearly visible and not buried where they’ll never be found. This is what’s considered by the TCPA as the “written agreement” between you and the consumer.

When it comes to the actual content of the terms and conditions, the CTIA requires specific information to be disclosed. This information includes:

• Business name
• Text Program name
• The number used for the program
• Opt-in instructions
• Opt-out instructions
• Help instructions
• A list of supported wireless carriers
• Messaging frequency
• Message and data rates disclosure
• Link to privacy policy

Privacy Policy Requirements

Unlike your terms and conditions, the TCPA nor the CTIA have specific requirements for the content, although there needs to be some material content within. While most people don’t read privacy policies, it puts consumers at ease knowing that the business they're interacting with maintains one.

We recommend, at the very least, making a statement about the protection of consumer information and your company’s perspective on it. Additionally, for your protection, you should include some information about the limits of your abilities and liability..

Controlled Content

The CTIA has additional requirements for SMS programs that pertain to adult content or controlled substances. While content of this nature is normally subject to scrutiny by the wireless carriers, some is allowed with proper functionality in place, particularly, age-gating.

An age gate is functionality that requires and confirms a person’s age at the point of opt in. For example, when texting to join, after texting the keyword, instead of immediately receiving the confirmation auto-response, you’d receive a message asking for your date of birth. Once the person has replied with their date of birth, if they meet the age requirements, they would then be opted in.

Note that the CTIA and carriers have a zero-tolerance policy for referencing the abuse of controlled substances and will take action on any text programs that are in violation.

Key Takeaway

Some controlled content is allowed, however, people are required to provide their date of birth. Only those of age can be opted in.

Prohibited Content

The CTIA and cellular carriers disallow certain types of messaging content. There’s also content types that, while not specifically called out, are disallowed. To further complicate this, what is and is not allowed varies by sending number type. Some content that may be allowed on a short code, for example, may not be allowed on toll-free. Since these regulations change often, check with your SMS marketing provider if you are unsure if your content is allowed.

Violations & Audits

There are a few different things that can happen if you’re in violation of the TCPA or CTIA guidelines. Remember, TCPA legislation is law and violations are punishable by the federal government. CTIA guidelines, while not law, can result in the suspension or termination of your short code, phone number, and text messaging program.

Conclusion

At the end of the day, SMS compliance is extremely important and not that hard. The golden rule is to obtain express written consent before sending broadcast text messages to people. Furthermore, be transparent about what people can expect to receive when joining your text program and how they can opt out if they choose to do so.

SlickText offers everything you need to launch a compliant SMS marketing program and has all the requirements built right in. From opt-in compliance verbiage to AI assisted opt out support to pre-built terms and privacy policies, we’re trusted by thousands of businesses and power some of the world's largest text messaging programs.

If you have additional questions or want to learn more, don’t hesitate to reach out to your team. We’d love to chat.

Please note that all information found in this guide is for informational purposes only and is not intended to constitute legal advice.