As we’ve covered before, text messaging is playing an increasingly prominent—and critical—role in marketing and sales campaigns. However, as its role expands, so does the importance of ensuring that your business is taking the right steps to support SMS compliance

In particular, your team must understand and manage its risk under constantly changing TCPA regulations. How to do just that was the topic of a recent ActiveProspect webinar, “Mastering TCPA Compliance in Your SMS Marketing Program.”

Joining ActiveProspect’s Chief Revenue Officer, Margaret Wise, and Director of Privacy, Security, & Compliance, Ben Farrar, was Attorney Alexandra Krasovec, Partner at Manatt, Phelps & Phillips. In the course of their discussion, they broke down the basics of text messaging and TCPA compliance, delved into the impact of recent developments at the FCC, and fielded questions from an active audience.

Read up on the highlights below to brush up on your compliance know-how.

Kicking things off, the panel dived into the basics of the TCPA’s coverage of text messages. In short, and as the FCC has made very clear with declarations in the past year, text messages are very much covered under the landmark federal law. Moreover, as Krasovec discussed, it’s more important than ever to pay close attention to changes in the law’s application because the risk exposure to damages is very significant—and penalties can add up in a hurry with each violation.

Crucial to understanding how the TCPA governs text messages is a distinction between informational and marketing communications, which the panel broke down in detail.

Essentially, the TCPA takes a very broad view of what’s considered marketing in your texts. “Basically, anything that’s not purely informational is considered marketing—and I mean that in the narrowest sense,” said Krasovec. In this context, informational texts would be limited to use cases such as messaging customers about accounts that they have with you, including security alerts.

“Marketing,” then, encompasses essentially everything else. And courts have stuck to this broad interpretation of the law.

In determining whether texts are marketing communications, they will examine links contained in texts. They will ask questions such as “Are you trying to drive traffic with these texts?” or “Are you trying to engage people and, for example, get them to download your new app?” Likewise, even encouraging customers to leave a review or take a survey would be construed as marketing.

While gray-area cases do exist—Krasovec notes that they’re often seen in referral and loyalty program communications—the most conservative, risk-averse approach is to assume that all of your texts could be considered marketing texts.

The reason this distinction is so important is that the standards of consent differ across types of communications. For informational calls and texts, the TCPA only requires prior express consent, a standard which is met if a customer provides their phone number in the course of a transaction.

However, for marketing communications over voice or text to be made using an automated system, then you will need prior express written consent. This specific, higher level of consent requires that marketers carefully follow guidelines in how they obtain, act on, and store proof of a customer’s written consent.

Krasovec provided an overview of the steps that must be taken when collecting prior express written consent to send marketing communications over text. Sellers must:

• Identify the seller to whom consent is being provided

• Identify or confirm the phone number that the consent is being provided for

• Obtain the consumer's affirmative agreement to receive advertising or telemarketing communications (calls or texts) made with an automated system

• Advise the consumer that they are not required to agree to give their consent as a condition of purchasing goods or services

• Obtain a signature from the consumer in writing (this can be electronic or a wet ink signature)

You should also make sure that these disclosures are clear and conspicuous and that you are keeping records of all consent that you collect.

In order to ensure that you abide by the TCPA in collecting consent to text—and that you’re compliantly storing proof of that consent—it’s critical to enlist the help of expert legal counsel.

Meanwhile, if you are working with vendors, including as part of a lead generation program, it’s important to review your contracts and ensure that they clearly dictate responsibility for the maintenance of consent. Krasovec pointed out that they should plainly address who is responsible for collecting consent, maintaining records and how they’re shared, and how parties will respond to any claims.

Historically, many lead generators have attempted to obtain consent on a broad basis, enabling them to text leads who’ve perhaps technically consented to be contacted by multiple sellers. However, with the latest rules put into place by the FCC, this will soon no longer be possible.

For those taking a proactive and more risk-averse approach to compliance, the FCC’s closure of the “Lead Gen Loophole” will likely not have a great effect on their approach to obtaining consent. However, since beginning in 2025 consent will have to be obtained on a 1:1 basis, and the marketing communications that follow must be logically and topically related to the page where consent is given, brands will need to more closely evaluate their consent gathering and storage practices.

Crucially, as Krasovec discussed, the burden of proving proper consent will now weigh more heavily on lead buyers, rather than suppliers. “[Lead buyers] need to maintain that record from the time that the consent is obtained so when they make that call [or text] they already have that record.”

Clearly, there's a lot to unpack when it comes to mastering TCPA compliance in your SMS marketing strategy. If you're eager to take a deeper dive into the details or hear the extensive Q&A that followed the presentation, don't miss the full recording. Watch the comprehensive webinar "Mastering TCPA Compliance in Your SMS Marketing Program" to arm yourself with the essential knowledge to keep your business safe and successful.

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DISCLAIMER: The information on this page and related links is provided for general education purposes only and is not legal advice. Convoso does not guarantee the accuracy or appropriateness of this information to your situation. You are solely responsible for using Convoso’s services in a legally compliant way and should consult your legal counsel for compliance advice. Any quotes are solely the views of the quoted person and do not necessarily reflect the views or opinions of Convoso.