Question Asked:

What about the new FCC rules governing Text Messaging? Posted 4 years ago by Andy Meadows in Captix

Do you have an FAQ that will explain more?

This is the answer to the question:

4 years ago by Andy Meadows (Staff Member)

When did the new FCC rules take effect?

October 16th, 2014

What are the new rules?

The new provisions require each marketer to show that they have obtained “prior express written consent” from existing and new contacts before the company can engage in any type of automated marketing-related phone calls or text messages.  That means that every single lead you are generating and every customer contact, even those already in your database, need to have given you written permission to contact them via their mobile phone using automation.  This means the receiver must reply back to your text message, email message or online form, indicating his interest in continuing to receive your advertisements via his mobile phone.  Written consent means that he must type “yes”, “go” or some other word in a text response or click “agree”, “confirm” or some other word in an email.  The marketer must also state directly in written communication to the receiver that “Consent to get texts is not required or a condition of purchase.”

Which messages are impacted?

Transactional messages such as “your flight is delayed” or “we have received your sweepstakes entry”, for example, are not subject to requiring express written consent, but they still need express consent.  Express consent can be obtained either verbally or non-verbally (written).  These rules are informational only or merely confirm that you as a consumer have taken an action and the company taken a follow-up action.

Marketing messages such as “20% off clothing today”, “New model available tomorrow”  or “Our candy tastes better!”, for example, do require express written consent, and not just express consent.   These messages are created and sent with the intent to have the recipient take action to buy something either today or in the future.  

Messages which mix Marketing and Transactional messages can be interpreted as being primarily Marketing, and thus risk exposing your company to the new rules requiring written consent.

How did this legislation come about?

These new texting rules have been added to the Telephone Consumer Protection Act (“TCPA”).  This legislation was originally passed in 1991 in response to consumer concerns regarding the growing number of unsolicited telephone marketing calls to their homes and the increasing use of automated and pre-recorded messages.

Who oversees these rules?

The Federal Communications Commission (FCC) and the Federal Trade Commission (FTC) share oversight of the rule adherence, as they govern how consumers receive information as well as protect them from fraudulent advertising.  

What happens if my company doesn’t comply?

Failure to comply with the new TCPA guidelines may result in penalties of $500-$1,500 per non-compliant phone call or text message.  In addition to this newly rolled out provision, it has been widely reported that TPCA lawsuit cases are on the rise, both by individual plaintiffs in small claims but also in class action suits.  The courts and the FCC have, in some instances, interpreted the TCPA provisions rather broadly, while courts and regulators are still debating as to the application of newer technologies.

Where can I find the exact wording of the rules?


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