TCPA Update

Updated: July 10, 2015

FCC’s 2015 TCPA Ruling

The previous Telephone Consumer Protection Act (TCPA) order, effective October 2013, included the following major points.

  • Prior express written consent requires a signed agreement conspicuously disclosing that the caller is authorized to send messages to a designated phone number through an automatic dialing system.
  • As indicated in the ESIGN Act, the required signature may be obtained via e-mail, website form, text message, telephone key press, or voice recording.
  • It must be disclosed clearly that the consumer is not required to accept the agreement as a condition of any purchase.
  • Text or voice solicitation messages may not be sent from 9:00 p.m. to 8:00 a.m. (recipient time zone).
  • STOP commands should unsubscribe users from all messaging programs on a given short code.

In July 2015, the Federal Communications Commission (FCC) issued an omnibus ruling further clarifying the TCPA. The order addresses some contested subjects pertaining to automated telecommunications and consumer consent.

1. Consent

  • Prior express written consent requires a signed agreement conspicuously disclosing that the caller is authorized to send messages to a designated phone number through an automatic dialing system.
  • Consumers may revoke consent by any reasonable means, and marketers are not allowed to restrict the manner in which consumers may withdraw consent.
  • Companies are expected to maintain complete records demonstrating consumer consent.

2. Autodialer

  • An automatic telephone dialing system (ATDS or autodialer) is defined as any equipment that can be used to store, produce, and dial numbers for telephone calls, including text and Internet-to-phone messages.
  • Even a manually dialed call or text by use of an ATDS is considered autodialed.
  • Autodialed communications require prior express consent except in cases of emergency.

3. Call/Text Initiation

  • A person or entity must take direct physical steps to cause an autodialer communication or be substantively involved in initiating it in order to be legally responsible for the call or text.
  • The provider of an app with auto-reply capabilities is not responsible for replies set by an end user.
  • An app provider is considered the initiator of invitation texts sent automatically (with little or no control by an end user) to contacts in the user’s phone. The mere existence of a contact number in a user’s phone does not demonstrate the contact’s consent to messaging.

4. Reassigned Numbers

  • In the case of a phone number that has been reassigned from a consenting recipient to a new user (i.e., someone who has not consented to calls or messaging), the new user must consent to any further contact.
  • The calling party has a one-call window to ascertain that the number has been reassigned. Any contact after this initial call or message is subject to penalty under the TCPA.

5. One-Time Autoresponses

  • One-off automated text responses to consumer requests are allowed without usual disclosures because the texts are fulfillment messages, not unwanted promotional material.
  • Such a text message is TCPA-compliant if it meets the following requirements.
    • It is requested by the consumer.
    • It is an immediate, one-time response.
    • It contains only the requested information and no other marketing or advertising.
  • To use the captured phone numbers for any future automated messaging, the calling party must disclose the usual messaging details and secure express written consent to such messaging.

6. Urgent Consumer-Protection Messages

  • The TCPA ruling exempts certain finance- and healthcare-related communications from the prior-consent requirement because they are generally expected and desired by consumers.
  • Financial service providers may call or message without prior consent to inform consumers of urgent matters such as fraud, identity theft, and money transfers.
  • The order also exempts healthcare-treatment calls and messages such as those for test results, appointment confirmations and reminders, prescription notifications, and preoperative and home-care instructions.

This notice is provided for strictly informational purposes and in no way should be taken as legal advice. SMS Marketing Services makes no claim as to the completeness or legal definitiveness of this material. We encourage you to review the complete FCC document and to seek legal counsel for any prospective action related to this ruling.

Updated: October 16, 2013

Revised Rule Under Telephone Consumer Protection Act (TCPA)

Please be informed that a revised rule under the Telephone Consumer Protection Act (TCPA) went into effect on 10/16/13 that requires “prior express written consent” for text or voice messages sent to phones for solicitation purposes. THIS IS NOT INTENDED TO BE LEGAL ADVICE, YOU SHOULD CONSULT WITH YOUR LEGAL COUNSEL FOR SPECIFIC STEPS TO TAKE.

Please look at the content of your campaigns and determine whether you are sending messages for solicitation purposes. If you are sending text or voice messages for solicitation purposes, then your campaign must meet the “prior express written consent” standard. The revised rule defines “prior express written consent” as a signed written agreement that clearly and conspicuously discloses to the consumer that:

  • By signing the agreement, he or she authorizes the seller to deliver telemarketing messages to a designated phone number using an automatic telephone dialing system and
  • The consumer is not required to sign the agreement or agree to enter into it as a condition of purchasing any property, goods, or services.

The required signature may be obtained in compliance with the E-SIGN Act, including via an e-mail, website form, text message, telephone key press, or voice recording.

For those contacts you have collected using our Mobile Keyword, Online Sign-Up Page (OSP), eOSP, Facebook Widget, and other features that require your subscriber’s voluntary action of sign-up, our system is designed to keep each subscriber action as written documentation. This documentation is useful only if you have fully disclosed your intent and purpose of your collection of their contact information and they agreed to allow you to send messages. However, for those contacts you have collected outside our system, you must be able to independently provide proof of written consent.

Penalties for violation may be severe and you have to take this change very seriously if you imported or manually added contacts.

AS A RESULT OF THIS CHANGE, IF YOU HAVE ANY IMPORTED OR MANUALLY ADDED CONTACTS IN YOUR DISTRIBUTION LIST, YOU WILL HAVE TO GO THROUGH THE IMPORT CERTIFICATION PROCESS AGAIN TO MEET MORE STRINGENT QUALIFICATION RULES EVEN IF YOU HAVE ALREADY SENT US YOUR IMPORT CONTACT IN THE PAST.

If you have an opt-in system outside of SMS Marketing Services, you should consult with your own legal team to create an opt-in system that provides the required disclosures under the revised TCPA rule, and captures a “prior express written consent” opt-in if your campaign contains solicitation content.

In addition, a declaratory ruling by the FCC confirmed that sending a single, final opt-out confirmation message does not violate the Telephone Consumer Protection Act. If you are an API user, please make sure that you do not send more than one message in response to a user’s STOP request. This means that STOP commands should be treated as STOP ALLs, unsubscribing users from ALL programs on a short code. Please discontinue the use of STOP Menus.

Furthermore, you are not allowed to send text or voice solicitation messages from 9PM to 8AM of recipients’ local time. You will see an error message during this time.

For any questions regarding TCPA revised rule, please contact our support team at +1 888-707-3030 or email
[email protected]