TCPA Specifications and Regulations

The TCPA was enacted to regulate phone calls and fax messages, but its scope has been continuously applied through the wireless age. It also created the national Do Not Call Registry and stipulated specific rules for autodialers and automated texting platforms.

Do Not Call Registry

For those who may not be aware, the “do not call list” is a real thing, not just a phrase people use to get out of a telemarketing call they accidentally answered. However, it can be difficult to get on it, as it often requires physically mailing in account and/or personal information about your interaction with a business. Still, empowering users to take action against unwanted texts or calls has affected the audacity of many telemarketers and automated messaging platforms in a way that reduces the annoyance for consumers.

Robocalls (And Texts)

Due to the outdated nature of the language of the TCPA, the definition of robocalls have been variably interpreted by courts throughout the past few decades. Most of us can remember seeing random strange numbers on our caller ID that ended up being spam messages. However, this practice has continued and even become more prevalent thanks to the convenience (and relative anonymity) of text messages.

As defined by precedent, autodialers are still relegated to machines that randomly produce and call 10-digit numbers for a real person to engage with a live telemarketer. With automated texting, however, the spam can reach people without an active speaker thanks to a pre-written message chain.

When it comes to reaching out to numbers you don’t already have consent to contact, don’t do it. The TCPA is known to cover and punish such infringements of privacy, and the people on the other end, whether they take legal action or not, won’t appreciate it either.

Violations of the TCPA

As mentioned above, most violations of the TCPA are by those who wish to make large-volume, anonymous calls to as many people as possible in order to gain revenue at scale. So for most normal businesses engaging in text message marketing, following common sense applications of how people use their phones and expect to receive texts is enough. Just for your edification, here are the most common violations of the TCPA that normal businesses might be at risk for.

Sending Unsolicited Texts

We’ve said it before and we’ll say it again: you must gain express written consent before sending any marketing text messages to your customers or contacts. This includes a personal phone call, pre-recorded message, text, or any other contact by phone number.

You also need to have access to the Do Not Call Registry to make sure any number you might be contacting isn’t on there. Contacting a number that’s on the Registry can be illegal unless the person has provided express written consent or patronized your business within the last 18 months. Otherwise, there’s no “established business relationship” by which you’re allowed to contact the number.

Penalties for Violations of the TCPA

There have been multiple high-profile lawsuits against telecommunications companies and other businesses for violating the TCPA in the past few decades. They include multi-million dollar settlements and penalties for statutory damages, often due to decisions made that willfully ignored the major tenets of the law. Without knowledge of the specifics of any given lawsuit, violating the TCPA can result in $500-$1,500 per violation, which might not seem like much, but considering the size of many large businesses’ contact or leads databases can quickly add up to millions of dollars.

When beginning a text message marketing campaign, be smart, stick to the basics, and use common sense to avoid these steep penalties and build a more trusting base of contacts.

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Understanding the role these regulators and their rules play in your marketing efforts is key to avoiding legal action and succeeding with a text message marketing campaign.

Federal Regulators

Along with the explicit rules for telecommunication practices outlined in the TCPA, there are current federal agencies that govern all cellular communications practices, including text messages. They include:

• The Federal Communications Commission (FCC)
• The Federal Trade Commission (FTC)
• The CTIA

These parties have different influences on cellular and other forms of media throughout the country. Perhaps most famously, the FCC sets regulations for wireless carriers (AT&T, Verizon, etc.) that trickle down to their customers, as well as providing information like TV ratings. With other influence over consumer rights is the FTC, which handles allegations of false advertising, theft, or violence committed over media channels, as well as fraud that occurs through text, email, calls, or faxes.

Finally, the CTIA is a collection of wireless carriers and media companies who lobby and influence legislation to influence the interests of the wireless industry. Their rules as iron-clad as actual legislation, but can result in text marketing campaigns or the businesses that run them being punished or banned from broadcasting messages that aren’t aligned with their regulations.

Mobile Carriers, Providers, And Senders

Besides federal regulators, mobile carriers and providers might stipulate their own rules on what they do and don’t allow (or recommend) you send through automated systems. You absolutely need to follow mobile carriers’ guidelines, such as sending messages from a 10-digit number rather than the 6-digit short code people initially text.

The rules differ by carrier, and since you can’t know which carrier any given contact uses, you need to abide by all their rules at once. This is where a messaging provider can help.

Messaging providers are services that essentially handle all the details of sending text message marketing campaigns to your list of contacts in exchange for a fee. They’re up to date with the latest carrier restrictions, legal rules, and other compliance requirements that applies to your specific industry. They might also have best practices that could shift your individual messages to be more effective.

Finally, you, the sender, have internal processes and brand guidelines that could affect a text message campaign. Although they’re far from federal laws, you should be aware that people receiving your messages expect a consistent experience from the confirmation text to their opt-out request. It helps to have rules or guidelines in place to keep the brand aligned no matter how long they stay on your contact list.

Specific Text Marketing Rules

For all the regulators and their rules, there are just a few that might actually change a common courtesy text message campaign. We recommend paying attention to these specific text message marketing rules:

• Do not purchase lists of phone numbers and automatically subscribe them to your next campaign.
• Obtain consent in writing whenever feasible.
• Do not distribute copyrighted or trademarked material that does not belong to your company.
• Be clear about the nature of the campaign – recurring alerts (like regular appointment reminders) must be differentiated from one-time messages (such as delivery notifications)
• Do not send inappropriate content relating to sex, hate speech, alcohol, firearms, or tobacco.

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Promotional Messages

In the eyes of regulatory agencies and marketers, the terms “promotional,” “marketing,” or “advertising” texts are the same. They promote your goods or services without requiring a purchase. They’re a great way to reach people directly, share fast updates or news, and ultimately increase revenue. However, you must have express written consent to communicate via text message to your audience using an automated system, and this opt-in process can be complicated.

The defining feature of promotional texts are that they simply inform people of your business and its services. It does not require anything in return for the opportunity to share this information with consumers.

Examples of Promotional Texting

Promotional texts can be described as one-sided, in a way. It means that, should someone not receive the message, ignore it, or not take any action after seeing it, there are no consequences. Promotional texts can include:

• Coupons or other special offers
• Announcements related to your business
• Unique opportunities, such as entering a sweepstakes contest
• Requests or calls-to-action

Your marketing strategy might include other types of promotional text message campaigns, but these are common incentives to encourage people to sign up and share their personal information with your organization.

Transactional Texts

Transactional texts differ from promotional ones because they require the recipient to respond or take other action in order to use or take part in your business. They either convey exclusive information, require a response, or compel a person to take action. This distinction is necessary because when someone provides their phone number to you, they must be told clearly and conspicuously that their phone number will not be used for anything other than, for example, verification, unless otherwise specified. If you then take that phone number that was described as used only for identify verification and begin sending automatic messages to it, you can be sued and punished by both telecommunications companies and the government.

Examples of Transactional Texting

Perhaps the most frequent and well-known example of transactional texting often accompanies two-factor authentication. In this security protocol, someone enters a username and password into an online application, for example, Facebook. Facebook then sends a unique code via SMS to the phone number associated with that account for the person to input to the program to access their account. Without the code, they cannot log in. It’s a transaction between Facebook’s automated texting service and the user.

Other examples of transactional text messages include:

• Appointment confirmations (not reminders)
• Password resets
• Tracking online orders
• Reservation confirmations

Any time there are instructions within your automated text campaign to respond whether via text or on a different platform, the text is transactional, and must be described as such when the user provides their phone number.

Why This Difference Matters

Creating effective, compliant text message campaigns requires clear expectations up front. You must specify (correctly) whether the messages people receive from your business are promotional or transactional in nature when they provide their phone number. Doing this leads to a better user experience and protects your organization from liability. There are many players in the regulation of text messages, meaning it can be complicated to know whether your messages might be violating laws or best practices. It’s always better to err on the side of caution when disclosing your marketing efforts through texts.

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Here are the best practices for creating ads and promotional content that are both engaging and compliant with the applicable regulations.

Make the Purpose Clear

You never want to grow your list by tricking people into sharing their personal phone number with your brand. Not only does this create a bad user experience, it also might get you in legal trouble. Instead, state your purpose clearly from the beginning. You don’t have to spell out the details of “we are asking for your phone number to increase revenue,” but you at least need to specify what people should expect in return for their information.

This largely comes down to compliance, where you disclose that the information people will receive by signing up for text messages will be for marketing purposes, that it will be sent by an automated system, and that there’s no condition of purchase for signing up.

An easy way to include this information is with a sentence like the following:

• By submitting this form, you agree to receive marketing text messages from our automated system and acknowledge that this agreement has no condition of purchase.

Most people are used to seeing brief disclaimers like this when signing up for things like online accounts and newsletters, so you don’t have to worry that the slightly legal-sounding content will scare people off.

Describe Your Value

Few people will voluntarily share personal information like their phone number without getting something in return. The good news for most businesses is that providing a small incentive for getting people in their database is often well worth the investment. Ideas for how to display the value of your text message marketing include:

• Coupon codes
• Early access/alerts
• Important updates
• Exclusive content

The more creative you can be with the type of value you provide for your text subscribers, the more likely it is that people will join!

Save Space With Known Abbreviations

When sending content in text message campaigns, character count matters. Keeping your messages short is a good idea to make sure nothing gets cut off or delivered in multiple messages as opposed to one. Fortunately, the history of texting has made dozens of abbreviations commonplace even as our devices got smarter and easier to send full sentences. This led the Cellular Telecommunications and Internet Association (CTIA) to officially develop a list of approved abbreviations so as to not punish some automated systems from using them. Among the most common abbreviations for texting include:

• Msg – Message
• /mo – Per Month
• Txt – Text

What Not To Share in Text Message Marketing Campaigns

Both the CTIA and the Telephone Consumer Protection Act (TCPA) recommend or require automated text campaigns to avoid certain content or even specific words to enhance the user experience and continue making your purpose clear throughout the length of the campaign.

First, do not use the word “free” to describe the cost of your text messages. Instead, use the ubiquitous “Message and data rates may apply.” This is because you don’t know every potential subscriber’s phone type and plan, and even a single text might result in an overage fee or contribute to a person’s pre-paid plan. It’s not a requirement, but it’s strongly recommended.

Second, don’t make promises you can’t keep. Using complicated incentives, such as “The first 100 subscribers will receive a special gift!” can backfire if you don’t have the ability to follow up with it.

Finally, remember the SHAFT topics (Sex, Hate, Alcohol, Firearms, and Tobacco) are off-limits. Don’t include hateful speech or profanity in any of your text message campaigns.

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SMS Keyword Consent

A common method marketers use to get people to express consent for their marketing texts is by encouraging them to text a specific word or code to a 6-digit number. For example, “Text Bikes to 252525 to get updates about our latest models and equipment.” This simple task counts as written consent as long as your sign is compliant with the Cellular Telecommunications and Internet Association’s (CTIA) guidelines for describing your text message campaign.

These guidelines include:

• The purpose of the campaign
• How often users will receive messages
• Disclaimer about message and/or data rates
• A link to your privacy policy

Otherwise, people can quickly send the keyword to the automated number and receive an instant reply confirming their opt-in.

Mobile Sign-Up Widgets

Many online businesses utilize mobile website design to make it even easier to obtain that keyword by taking the minimal labor out of the process. When mobile users click on a button that says, for example, “Sign up for mobile alerts for 10% off your order!” their device can automatically open the message app and pre-fill the necessary information. This includes the keyword and your custom phone number, meaning all the person has to do is click send to sign up and express consent. The confirmation then comes automatically.

Static Web Forms

Your website probably already has a standard contact page with fields for a person’s name, email address, and question or comment. You can easily expand this form to include a phone number field to gather more contacts for your automated text message service.

Keep in mind that this interaction needs to be compliant with the applicable regulations. This means following the rules mentioned above by the CTIA as well as the Telephone Consumer Protection Act’s (TCPA) guidelines. As long as you accurately describe your text automation services and provide a way for people to clearly understand what they’re consenting to, you shouldn’t have to worry about potential legal ramifications.

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Definition of Express Written Consent

The phrase express written consent comes from the Federal Communications Commission’s definition from the Telephone Consumer Protection Act (TCPA) as well as subsequent FCC regulations. In these regulations, express written consent is permission given by a consumer either digitally or in person to receive marketing messages sent – and this is the important part – by an autodialer or other automated process. It also includes the stipulation that the consumer is under no obligation to consent in order to receive goods or services from the company requesting permission for these messages.

The adjectives that make this type of consent different are the key to understanding express written consent. First, “express” means that you can’t assume a person consents to receive marketing texts because they, for example, already made a purchase at your business. The consent must be separate from other transactions or agreements. The “written” aspect is a little looser; consent can be given by texting a code to a specific number, checking a box after inputting their phone number, or by signing their name.

Why is Express Written Consent Important?

The short answer for why consent is important for setting up successful text message marketing campaigns is because otherwise it’s illegal. Companies have been fined and punished in the past for failing to obtain consent for automated campaigns, and routinely signing people up for marketing texts they don’t want is a recipe for a bad user experience.

Fortunately, giving consent for text marketing is familiar to many people these days. Everyone is enticed by having access to the latest offers, specials, new services, etc., and texting is becoming more and more synonymous with brands that offer it.

In addition, having a consent-driven opt-in process allows you to identify the most qualified leads on your contact list. These people are among the most likely to not only pay attention to the marketing texts they receive, but also to make purchases that help grow your business. In this way, compliance is not only required, but encouraged to enhance your ROI.

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Gain Express Written Consent

The Telephone Consumer Protection Act (TCPA) requires businesses to gain “express written consent” before soliciting them with promotional text messages. Although this consent can be given in different ways thanks to the numerous functions of modern mobile devices, the consent request needs to be clear, rather than buried at the end of long paragraphs of legalese.

The ways in which consent for text message marketing are given these days include:

• Providing a phone number (and confirming it) and checking a box that explains by doing so, the user consents to receive text messages from your practice.
• Texting a keyword or code to a specific number in response to an advertisement or call-to-action.
• Physically signing a consent form in person that clearly states the terms of the agreement.

This process is often simply called the opt-in phase of marketing. Opting in provides you an opportunity to explain what you’ll provide in exchange for consent. It’s a chance to emphasize that the person isn’t obligated to make any purchases and can opt out at any time, providing trust and transparency in association with your brand.

Only Message Contacts With a Record of Consent

Part of any compliant and winning marketing strategy includes keeping an accurate record of your contacts, including whether and when they opted into your text message system. Where many practices slip up is when importing legacy contacts or leads from a different system that they may have obtained consent in the past.

Although these contacts may have provided consent previously, they technically haven’t opted into the new campaign or system that you want them to join. It’s a hassle, but it’s important to re-obtain consent from these contacts to ensure you’re maintaining TCPA compliance.

Create Clear Boundaries and Calls-to-Action

The point of your text message marketing effort is to drive sales or consultations – or both. Doing this means you’ll be sending a lot of calls-to-action in your texts to your contacts. Complying with TCPA guidelines includes letting users know that some (or all) of your texts are automated and are provided with no obligation of purchase.

Beyond this step of compliance, consider the user experience of the opt-in process. Be clear with what they should expect to receive, as well as how often you’ll text them. Are you sending them exclusive offers? Letting them know before others about new services or products? Will you simply be sharing information?

When users receive texts they weren’t expecting from a brand, the loyalty and interest for that provider plummets. Set clear expectations from the start to ensure there aren’t any surprises.

Send Confirmations With Carrier Compliance

Compliance extends to the best practices that carriers (like AT&T and Verizon) put into place. This includes:

• Your identity and the number that will be messaging them
• How often they will receive messages
• Data or message rates may apply
• Instructions for opting out

Fortunately, people who are interested in services to the point of signing up for automated text campaigns are used to seeing these phrases and confirmation messages, so if they’ve already shared their number, this confirmation often goes unnoticed.

Avoid SHAFT Content

Finally, complying with the CTIA’s (Cellular Telecommunications and Internet Association) best practices for text message content ensures you won’t be flagged for harmful content that discusses sex, hate, alcohol, firearms, or tobacco (SHAFT). Discussing or sharing automated content about SHAFT topics can result in a ban on your phone number, forcing you back to square one.

Compliance Matters

This is just the starting point for understanding how to appropriately and legally send automated text campaigns. Although there’s a lot to consider, much of it is easily understood by common sense.

Please Note: This advice is for informational purposes only and is neither intended as nor should be substituted for appropriate legal counsel and/or your company’s compliance team.

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What is a Chatbot?

A chatbot is a computer program that mimics human conversation to “speak” with your patients. An example of a chatbot is a messaging system that looks like a text conversation. Patients can use this to ask questions about your services and the AI computer program will respond, like texting with another person. This can be helpful because users will be able to quickly receive answers, even if your office is closed, but there are some limitations.

Pros

Faster Customer Service

When you have a chatbot on your website, patients will no longer have to call your office and wait for a response. Even if they do call the office and someone immediately picks up, they may have to refer to you, the leading physician, for the right answer. This saves you time and gives your patients a great customer service experience, which makes everyone happy. Happy patients mean an increased likelihood that those patients will keep coming back!

Less Labor Costs

Chatbots take the place of a paid employee and allow you to indirectly reach out to patients after hours. You don’t have to worry about hiring another company to manage phones at all times because the chatbot will do it for you.

Multifunctional

Chatbots can be used for a variety of purposes: customer service, advertising, lead generation, and more! Instead of having to answer the same questions multiple times, a FAQ chatbot can store all those answers for you in an easily accessible place. Chatbots can also be used to respond to messages on Instagram and Facebook which builds a connection between you and your patients.

At DLM, our conversational AI, IRIS, lets you respond to patients from your website via text message. This allows for a more personal response.

Cons

Limited Responses

Since chatbots are programmed machines, they don’t have all the answers. They might not be able to answer complex questions with multiple parts or give patients the exact answer they were looking for, which can be frustrating.

Costs

Although chatbots keep the labor costs down, chatbots can get expensive as they get more complex. The more they can do, like answering those complex questions, the pricier they will be.

Only Suitable for Big Businesses

Since chatbots can get expensive, they might not be worth it if your practice is small or newly developing. It’s important to consider how many patients or potential patients you will be reaching with the chatbot to determine whether it will help.

Automated Services with DLM

At Digital Limelight Media, our job is to make yours a little easier and help you develop a marketing strategy that runs smoothly. Chatbots are just one great example of automated services we utilize, and these can save time and money while helping your marketing campaign run effectively. If you’re uncertain about whether you should invest in a website, give us a call at 616-222-3735 and one of our marketing specialists would be happy to talk over your marketing plan with you.

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Know the Rules

When it comes to reaching out to your patients via text messaging, you may be subject to certain regulations. However, a good rule of thumb is to always receive clear consent for texting your patients. It is helpful to know that when a patient provides you with their phone number through appointment scheduling or intake forms, this is considered consent to begin texting them. However, you should always give patients the choice to opt-out of receiving text messaging from your practice.

It is also important to take into account that SMS text messages are not encrypted, meaning that the contents of each text message are not completely private. Because of this, you should never include protected health information via text.

Choose the Right Text Messaging Platform

When it comes to choosing the right platform to send text messaging to your customers, it is important to choose a HIPAA-compliant tool. You should also choose a tool that streamlines and keeps track of your text messages to make it easier for staff to respond to patients, as well as reduce the chances of losing messages.

Also, seek out texting platforms that allow for newer functionalities such as communicating via text from your website. This will expand access to your practice for both current and potential patients, increasing the opportunity to schedule more appointments.

Make a Plan for Your Practice

Once you have decided that you would like to incorporate texting into your communication strategy, it is important to define the ways you will use it. Choosing specific uses for texting will avoid overwhelming your patients with too many messages. Some of the most popular ways to use texting include scheduling appointments, sending automated appointment reminders, notifying patients of a bill, and communicating with the care team or healthcare provider.

Establish a Process to Handle Incoming Messages

After establishing a plan regarding the ways you will use text messaging to communicate with your patients, you should designate a set person to respond to each message, as well as create a workflow to ensure every message receives a response. You should also establish goals regarding response times. For example, will your response time be within 24 hours of the initial message, or one to three business days? Every practice is different, so choose what is reasonable for your office.

Be Prepared

To best prepare for answering your patient’s text messages, developing standard responses to use as texts come in is an effective tactic. However, ensure that these responses are personalized, as you don’t want to come off as impersonal or robotic.

Improve Client Communication Today

Take the first step toward implementing a text messaging platform in your practice with DLM IRIS. IRIS lets you easily capture potential patients from your website and respond to them at your convenience via text message. This makes it easier for both your team and your patients to connect and communicate. Contact us today to learn more about how our conversational AI tool can help you!

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What are AIs?

AIs are true to their name – they can be a replacement for activities that require human intelligence. Except that instead of using human reasoning, they use preprogrammed behaviors to solve problems. As you’ll see, this has a wide variety of applications on both small and large scale. But in both cases, AIs can enhance your patients’ journey while saving you valuable resources to apply elsewhere.

How AIs can Transform Your Digital Marketing Strategy

AI programs can do a lot, including streamlining processes and optimizing your marketing campaigns. Most importantly, they can reduce human error and more easily provide the data you need to steer your marketing efforts. Although AIs can’t emulate the realm of human emotion (and don’t underestimate the role this can play in marketing!) they can overcome some human limitations to help you make the best decisions for your practice. Here are just a few ways AIs can be incorporated into your strategy.

Chatbots

One application of artificial intelligence you’re probably already familiar with is chatbots. Attached to websites, chatbots can help filter out common customer questions and guide them through the conversion process. The biggest benefit of these is that they can fill in gaps outside your practice’s hours of operation or free up capacity for employees. Although currently, it may be obvious when you’re conversing with a chatbot, this technology is rapidly changing to better implement artificial intelligence for a more natural and engaging interaction for customers.

Digital Advertising

Advertising, both digital and otherwise, has traditionally relied on creativity to bring in customers. With the advent of the internet, however, it has become more apparent than ever that delivery matters just as much. Targeting potential customers based on variables like location, habits, and profiles can be a big task – and one best suited for artificial intelligence. By relying on AIs to place ads in front of the most relevant and promising customers, you can get the most out of your advertising costs.

Content Curation

AIs can be a valuable part of your content strategy. Although we may not be at a point where AIs can generate convincing content, they can help optimize your efforts and research promising topics to lead your content strategy. Additionally, AIs are one of the best tools available to generate reports on both your content initiatives and potential untapped keywords.

Let’s Get In Touch

Wondering how AIs can transform your business? We can help. Our team can make sure you’re getting the most out of your digital marketing strategies using our industry-leading EMR platform and AI applications. Give us a call at 616-222-3735 to get started.

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