Text messages that deliver payment alerts, reservation confirmations, links to billing statements and other business communications are becoming increasingly popular with consumers. To improve customer experience and engagement, more companies are adding text messaging as a key customer communications channel.
Before jumping in, though, companies need to take the crucial step of securing consent from their customers to send them text messages. While there are some exceptions when it comes to sending an initial text, businesses are going to be best served by getting consent upfront to regularly interact via text messaging.
For successful and compliant text messaging programs, asking consumers for permission is near the end of the getting-consent process. First, companies need to make some important decisions, then establish policies and processes to carry them out.
- Seek out expert advice.
Because of the growing patchwork of federal and state laws, regulations and agencies that govern text messaging, including the Federal Communications Commission and the Telephone Communications Protection Act, companies launching text messaging programs should seek out expert compliance advice from their customer communications management and text messaging providers.
As Nordis Technologies’ text messaging partner, we at Solutions by Text work closely with the company and its clients to ensure ongoing compliance with all applicable rules. Variables that must be addressed include:
- Requirements that vary by industry.
- Conditions for validating and using cell phone numbers, especially if they’ve been transferred.
- Standards and requirements set by telecom providers. Starting in March, the FCC began requiring carriers to block text messages that are “highly likely to be illegal.” In addition, the carriers often impose other standards and prohibitions for text messages.
- Default to express written consent.
There are different consent requirements for transactional and informational text messages versus marketing communications. Consumers must give businesses express written consent to receive automated promotional text messages while express consent is enough for informational messages.
However, the lines between the types of messages can blur and carriers have started raising the bar beyond federal and state rules on consent. As a result, setting a policy of always obtaining the highest level of permission–express written consent—is recommended.
- Make it clear what your ask is
The request to allow texting must be clear and conspicuous, according to the TCPA. It cannot, therefore, be buried in a user agreement or privacy policy. What’s more, companies must ask and receive permission for each and every type of text messaging they want to send. Just because a consumer opts in to accept reservation confirmations by text does not mean the company can also add texts with payment alerts, reward program updates or other information or promotions.
- Create multiple processes for asking, receiving and documenting explicit written consent.
Permission can be given in writing, verbally or electronically. The FCC definition includes express written consent given on website forms, in a recorded verbal agreement, or by selecting a specific telephone key when prompted–assuming the call in which that keystroke is given was legal in the first place, such as an inbound call the consumer made to you. Companies can solicit consent in written and digital statements and other communications and build consent in contracts. Consent often can be passed through to third parties, including collectors as long as this information is included in the original consent agreement.
- Use compliant language when obtaining permission.
When asking consumers to opt-in to text messaging, the request must include the company name and purpose of text messages. The request also must state that the company will be using automated messages, that opting in is not a condition for a purchase, and for promotional texts, message frequency. Every text message also needs to contain an option to stop or opt out.
- Display terms and conditions
To comply with TCPA and the Wireless Industry Association CTIA guidelines, companies must not just create a set of terms and conditions for their text messaging programs but they must make them clearly visible. TCPA considers this an essential part of informed consent.
- Double authenticate a customer’s cell phone number.
This approach is the gold standard for obtaining customer consent. To ensure the customer is who they say they are—and someone else isn’t filling out consent—companies send a PIN as part of the opt-in process. They often use a different communications channel, such as a phone call or email, for the PIN to confirm a person’s identity.
- Confirm opt-in (and opt-out.)
CTIA requires a business’ first text message to a customer to be a opt-in confirmation, with an opt-out option. Similarly, when consumers opt out, companies must send a final text message confirming that change.
The explosion in text messaging is prompting greater scrutiny and heightened consumer protections from the government and industry associations. Rules and laws continue to evolve, so it’s not really possible to “set it and forget it” when it comes to text messaging programs. It’s important that companies work with providers that can keep them compliant and current with best practices.
If you are interested in adding text messaging and/or more guidance about getting consent, we can help. Contact us to get started.
About the Author
Amanda Payton, Esq., is a respected industry leader with a deep knowledge of compliance and risk management. As the General Counsel for Solutions by Text, Amanda is responsible for all internal and external legal and regulatory functions. This includes implementation and ongoing monitoring of the company’s operational risk, compliance, information security, and governance programs.
Prior to this role, Amanda served as a litigator, practicing in Texas. She is admitted to the State Bar of Texas and holds a BS in Marketing from New York University’s Stern School of Business and a JD from the University of Kansas School of Law.
