A Simple Solution to SMS Compliance

You want to be able to market your eCommerce business by contacting customers and leads through SMS, but you also have to make sure you’re doing it by the book.

Just about any business can see a significant ROI from SMS marketing. As we saw in Benefits of SMS Marketing for eCommerce, SMS can be a very powerful way to boost engagement and sales.

But with great power comes great responsibility!

Any eCommerce that relies on electronic messaging to be in touch with customers needs to be aware of the CAN-SPAM ACT. That stands for Controlling the Assault of Non-Solicited Pornography and Marketing, a law put on the books back in 2003 to address the abuses of spam email, applying also to SMS.

In addition, the FCC was empowered by Congress to enforce the Telephone Consumer Protection Act (TCPA) back in 1991. While envisioned for standard phones that receive calls, the legal protection extends to cell phones and texts.

In a nutshell, TCPA prohibits businesses from contacting people via SMS without their official consent. That applies even to customers who have already placed an order and given their phone number.

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Who regulates and enforces SMS compliance? 

The Federal Trade Commission (FTC) monitors, regulates and enforces SMS marketing regulations. It also comes under the jurisdiction of the Federal Communications Commission (FCC), the body behind the TCPA.

In addition, to demonstrate a position of good faith, there are a couple of organizations involved in establishing the standards for ethical text marketing: the Cellular Telecommunications Industry Association (CTIA)  and the Mobile Marketing Association (MMA).

Guidelines vs. Laws

Like the code repeatedly referenced in The Pirates of the Caribbean, the CTIA guidelines are just that and not legally binding. However, the organization does have the power to shut down programs that do not comply with them.

For example, the CTIA set up a rule about what to avoid called SHAFT, which stands for sex, hate, alcohol, firearms, and tobacco. Messages that relate to any of those topics are considered a major violation that can get one ousted from using their services.

Violating federal laws can get a business in even more serious trouble and cost them penalties. Violations of the CAN-SPAM ACT can cost a business up to $43,280 in fines for each violation, and there are additional laws that come to bear on SMS marketing.

How to do SMS marketing legally

The rule of an oral contract not being worth the paper it’s printed on also applies here. Oral permission doesn’t cut it for the law; it must be “express written consent.”

If you want to contact customers via SMS, you must first get their explicit and informed consent. The informed part entails the business giving a clear explanation of disclosure of the text messages they will receive on their mobile devices.

What informed consent means

The law requires absolute transparency in letting subscribers know what kind of communication they are agreeing to receive. You can’t bury this explanation in 5.593 pages like the government’s relief bill. In this case, the law requires the information about consent to be clear and straightforward.

In general, it’s good to include your terms and conditions for subscribers on your site and in periodic reminder emails. It’s particularly important to include it clearly on your site’s landing pages designated for opt-ins.

They also have to be given an idea of the approximate number of messages they should expect to receive. That may be one a week, two a month, etc.

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Forms of consent

Though the consent is written, and a signature on paper is one way to get it, it is not the only way. Digital writing counts, too, though it has to be logged.

That’s one of the advantages of using Remarkety’s SMS service; it logs subscriber consent for you automatically.

Subscribers can use an online form that explicitly states that the consumer is subscribing to receive text messages from the company once they provide their phone number. Remarkety offers double opt-in to be doubly sure of compliance.

Subscribers can also opt-in via keyword. That works by having customers text a keyword from their mobile device to join your SMS database that you’d confirm with a text. Remarkety sends out follow-ups based on keywords for subscribers.

Additional notifications for subscribers

  • Notice of possible charges: While most cell phone users today no longer get charged per text, you can’t take it for granted that every single one of your customers fall into that category. Be sure to warn subscribers that standard message and data rates may apply.
  • Help Instructions: Inform subscribers that they can type in the word HELP on any text message to get access to a link or number that gives me the details about your business or subscription that they want to know.
  • Opt-Out Instructions: You must include clear instructions to unsubscribe in bold type, which typically include terms like STOP, END, CANCEL, UNSUBSCRIBE or QUIT. This is extremely important to include to comply with the law against spam. Remarkety will automatically carry through any cancelation requests.

Things to remember down the road

In every message

Include your business name to let the subscriber know who the sender is. Also include STOP instructions so that anyone who doesn’t want to get any more texts can easily opt-out.

Timing is everything

This applies not to the frequency of your communication. You want to keep in touch but not become too obtrusive. If your subscribers feel they are getting pinged too often, they will unsubscribe, and then you would have lost that channel of communication.

Generally, Remarkety recommends no more than two texts a week, unless there is some compelling reason to add more like an upcoming holiday, special offer, or a reminder about an abandoned cart. In those circumstances, you may end up sending 3 or more in a week, but that should not be the practice for a standard week.

Keep subscribers in the loop

You must let your subscribers know if you change your terms and conditions in any way. For any change, you also have to get consent with opt-in permission to continue their subscription. Typically, you’d ask them to reply with CONTINUE or YES.

For help getting started, see Getting Started With SMS Marketing For eCommerce

Learn more about Remarkety’s SMS offering and how the system tools remove the headache of worrying about regulation violations by reading about it and requesting a demo.