What is the Telephone Consumer Protection Act (TCPA) and how does it affect me?

TCPA restricts how you can legally send text messages. Violations can be costly.

What is the Telephone Consumer Protection Act (TCPA)?

The Telephone Consumer Protection Act (TCPA) is a federal law designed to protect consumers from unwanted communications. It places restrictions on telecommunications that happen via voice, text message, and fax. The intent of TCPA is to give consumers the ability to decide which telecommunications they wish to receive while preventing the receipt of undesired auto-dialed calls and text messages.

Failure to comply with TCPA can lead to fines of $500-$1,500 per violation. In the case of text messaging, each non-compliant text message counts as a violation.

Swell Messaging and Acceptable Use Policy

Swell works with organizations that want to engage with consumers, patients, and employees in a deliberate and meaningful way. Sending text messages to consumers, prospects, or patients without obtaining prior consent can lead to account suspension or termination. 

Prohibited Behaviors

The following behaviors can be grounds for account suspension or termination:

• Purchasing contact lists

• Sending messages to contacts that don’t have a relationship with the sender (not a direct patient or customer)

• Sending messages to contacts who have not opted in to receiving messages

• Sending marketing messages without obtaining explicit consent from customers to do so. For example, if your communications opt-in form tells customers that you will only send account updates, sending them marketing messages without first obtaining additional consent would be a violation of TCPA. 

• Continuing to send communications to a contact after they have requested that you stop

The Key: Always Obtain Consent Before Sending any Communications

The only way to avoid sending unwanted text messages is to ask customers directly about what communications they wish to receive. To avoid TCPA violations, fines, or account suspension, make sure that you:

• Only send text message communications to people who have previously provided consent
• Only send the types of communications that they have explicitly opted into (for example, account updates, test results, promotions, etc.)
• Stop sending messages when a customer asks you to

Obtaining Consent

The most common method for obtaining consent to text customers is done by presenting them communication preference options during new client registration. Consent options can be presented electronically, on paper, or verbally. Regardless of how consent is gathered, records must be kept of customers' opt-in status.

Opt-In Form Examples

Example 1 - All-in-One

[ ] Yes, I’d like to receive text messages from <Company> including reminders, updates on my account, and information about promotions and offers. Message frequency varies. Messaging rates may apply.

Example 2 - Separate consent for marketing

[ ] Yes, I consent to receive text messages from <Company> with respect to my treatment. Message frequency varies. Messaging rates may apply.

[ ] Also send me messages about new products, promotions, and special offers.

Consumers can revoke consent at any time, in any form

You must honor any reasonable request to opt a recipient out of receiving messages. This might include a request in person, over the phone, or via a message reply (e.g. “Please stop contacting me”).

The opt-out process is managed at two levels in Swell:

• Automatically: Recipients who reply STOP are automatically opted out and cannot receive messages from that number any more.

• Manually: If you receive a request from a customer to cease communications, you can mark their contact Blocked to prevent all messaging in both directions.

Best Practices

Proper consent language and workflows will help customers stay on the right side of TCPA:

• Disclose that communications will include marketing messages whenever applicable.

• Effectively track & update consent if a number is transferred or consent is withdrawn.

  • Note that consent applies to a person, not a phone number. If the number gets transferred to someone else, consent to contact that number is reset.

• Be cautious when sending bulk messages manually

  Most large-scale compliance issues arise when customers attempt to bulk send a message to a large number (i.e. hundreds or thousands) of contacts. Mass sending is OK if messages are sent to contacts who have opted in to the type of communication you're sending. However, large blasts can trigger a spike in opt-out rates, especially if there’s a sudden change in the tone or purpose of the message when compared to previous messages. Exercise extra care to make sure these types of messages are only sent to people who want them.